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A treatise on the system of evidence in
3 1924 020 192 393
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A SUPPLEMENT
TO
A TEEATISE ON THE SYSTEM OF EVIDENCE
IN TRIALS AT COMMON LAW
SUPPLEMENT
TO A TREATISE ON THE SYSTEM OF
EVIDENCE
IN TRIALS AT COMMON LAW
CONTAINING
THE STATUTES AND JUDICIAL DECISIONS
1904-1914
BT
JOHN HENRY WIGMORE
PKOFESSOR OF THE LAW OF EVIDENCE IN THE LAW SCHOOL
OP NORTHWESTERN UNIVERSITY
SECOND EDITION
BQSTON
LITTLE, BROWN, AND COMPANY
1915
Copyright, 1907, 19.15,
Bt John H. Wigmobb.
All rights reserved
Set up and electrotyped by J . S. Gushing Co., Norwood, Mass. , U.S.A.
Pressworkby S. J. Parkhill& Co., Boston, Mass., U.S.A.
PREFACE
It is the purpose in this Preface to offer some comments on the merits of
our law of Evidence and of its treatment nowadays by courts. During the
last ten years has appeared much public criticism of procedure and courts.
How far is it justified in this present field of the law? Much hopeful but
indefinite aspiration for the better is felt. How should we proceed to realize
it in this part of the law ?
The law, as a practical force, always receives its final effect (in our
system) through a pronouncemerft of the judge. The virtue of the law as
we get it is therefore dependent on two elements, — the rule and the man.
In a critical view of it, the part played by the judges and their methods must
be taken account of.
This survey will therefore inquire into :
I. The qualities of current judicial decisions (A) in general, (B) in the law
of Evidence.
II. The merits of the rules of Evidence (A) in general, (B) in particular.
I. The Judicial Decisions. A. In general. One who has perused several
thousand contemporary decisions cannot help forming some impressions of
their juridical qualities. By this is meant their adequacy as a regular mode of
doing justice, irrespective of the soundness of specific legal rules involved or
the correctness of individual decisions. For every critical judgment there
must be a standard. It will not be a standard too ideally high, if we take as
models the opinions by many judges in many States in the generation just
before the Civil War, — Shaw, Bronson, Tilghman, Lumpkin senior, Gaston,
Ryan, Blackford, Doe, Gibson, Nelson, Beasley, Napton, Selden, Daly,
Appleton, Goldthwaite, Walworth, and a score of others'.
By that standard, what are some of the shortcomings of the usual opinions
rendering justice in the usual State Supreme Court? The following im-
pressions are offered as representing the composite traits of a typical Court ;
though they may be inapplicable to a particular Court at a given time.
1. A first shortcoming to be noted is the lack of acquaintance with legal
science. By " legal science " is meant all that is above, between, and be-
hind the particular rules and precedents, — the system of legal knowledge, —
that which distinguishes the architect from the carpenter. In an adminis-
trator of the law, one's equipment as a scientist may be in general denoted
PREFACE
by one's attainments in (a) legal history, (b) legal philosophy and Jurispru-
dence, (c) sound discrimination of the best sources of knowledge.
(a) Acquaintance with legal history is almost totally lacking. There are
now ample modern sources for a knowledge of the history of the great prin-
ciples of our law. They are unknown to our judges. The citations of Pol-
lock and Maitland's History since its appearance in 1895 could be numbered
on the fingers of both hands. There exist now plenteous other standard au-
thorities. But whenever there is an expounding of history, Blackstone
suffices. For the judiciary's purposes, the world stopped still with him.
(6) The philosophy and jurisprvdence of the law are unknown. Austin,
Salmond, Holland, Amos, Sidgwick, Spencer, Terry, Gray, might as well not
have written. To be sure, Anglo-American legal science itself has, until very
recently, covered formally but a part of the field, chiefly the so-called analyt-
ical jurisprudence ; but even this has suffered " the long divorce of steel "
from the law, so far as judicial opinions reveal.
(c) There is no discrimination in the use of the expository authorities.
Such a discrimination is the mark of a sound legal education and a correct
scholarly standard. But, in the judicial opinions, the superficial products
of hasty hack-writers, callow compilers, and anonymous editors, are given equal
consideration with the weightiest names of true science. Obviously, any
printed pages bound in law-buckram and well advertised or gratuitously pre-
sented constitute authority fit to guide the Courts.
Note, however, that it must be bound : for if it is in periodical form, it is
ignored. For ten and twenty years past there have been at the service of
the profession some half a dozen legal periodicals, publishing the weightiest
critiques of current legal problems. There is nothing in judicial opinion to
show that these articles have ever been read ; apparently their great labor
and acute skill have been wasted on the judges.^ The article by Louis Brandeis
and S. D. Warren on " The Right of Privacy " (published in the Harvard
Law Review some twenty-five years ago) is the most notable of the rare
exceptions discoverable.
What are the apparent causes of this lack of knowledge?
(1) One, of course, is the lack of a systematic, thorough, law-school edv£a-
tion. Very few of the judges have had the benefit of it ; statistics alone could
show just how few.
(2) Another cause is the lack of time permitted to the judges for browsing
around, in the world of legal science, outside of the narrow pasture in which
they are tethered. This will be again referred to as explaining another
quality.
(3) A further, and perhaps a main explanation, is the judges' indifference
to legal science. This indifference they share with most of the profession.
What they respect is mere precedent, — a prior decision, and the latest de-
' And when occasionally they are read, and used, they are studiously not cited. A nota-
ble example of this was recently related to the writer, by one who had it directly from a
chief justice.
PREFACE
cision. This respect is, in turn, sensed by the authors. What ought to be a
genuine juristic treatise is degraded to a mere collection of precedents, —
preceded by sentences beginning " Some Courts, indeed, hold etc." and " It
has been decided, however, on the contrary, etc." The judges measure a
treatise by its value as a digest. By thus settling a standard of valuation,
they disparage the careful, helpful thinker and encourage the mere compiler.
The progressive development of the law by analysis and construction is stifled.
2. Another shortcoming is unfamiliarity with the body of controlling prec-
edents. The judges do not know well and fully the precedents of their own
court. Instead of judging the briefs and argimients by the law known to
them beforehand, they look up " the law " after the briefs are in, and confine
themselves to the boundaries of the briefs. The opinions give the strong
impression of being discoveries by the judges, — discoveries, that is, of what
they never knew' before. The opinion exhibits conscientiously the mental
lucubrations experienced in making this discovery. The lengthy opinions
quote redundantly well-settled platitudes from earlier opinions, — re-proving
old truths, which are apparently new and therefore interesting to the writers.
Many opinions give precisely this impression : " The learned counsel for the
defendant is in error in arguing that 2 and 2 make 5. The weight of au-
thority (and we frankly state that this view seems to us more reasonable)
holds that 2 and 2 are 4. In Coke's Second Institute, fol. 6, etc. In Chan-
cellor Kent's Commentaries, book III, page etc. We quote a few leading
opinions, etc. The Supreme Coiu-t of Missouri, as far back as Brown v.
Jones, 24 Mo., said : ' 2 and 2 have always been held to make 4.' We are
therefore constrained to hold etc." — It need only be added that this trait
is almost lacking in a few of the States on the Atlantic shore, where (pos-
sibly) the life-tenure of the judges explains their greater adeptness in ignoring
platitudes and other settled things, and in addressing themselves directly to
the precise shade of distinction involved in the new case before them.
The main ulterior causes of this trait are " tolerably obvious " (as a well-
known professor of mathematics used to say blandly to his freshmen), but
are deep-rooted, — far beneath the personnel of the judges.
In the first place, the judges are rarely left long enough in the tenure of
their positions to become thoroughly familiar with the precedent-law of their
own court.
In the next place, the overburdening labor cramps them. The numbers of
appeals, and the popular demand for quick despatch, unite to make a pressure
for hurry. This means that there is no time to study and master ad hoc
the whole law of a subject. There is only time to master the record of the
specific case, and for this purpose to peruse the precedents cited on the brief,
or some of them.
In the third place, there is tm standard set by a highly trained body of
Supreme Court advocates, specialists, who themselves know all of their
subject and skilfully present the concise essence of the actual controversy.
PREFACE
The appellate lawyer may be any ill-trained lawyer ; most of them are (rela-
tively) tyros in that field. Hence there is no high standard. by which to
force the judges to the highest standard.
All three of these causes go back to the profession and to the community
at large. Both refuse to make judicial tenure long and secure, — refuse to
sanction a proper system of appeals, — refuse to have a select, skilful, and
well-organized bar. Therefore they must expect the natural results. A
common-place standard at the bar and in the community is bound to limit
the achievements of public judicial oflBcers, — inasmuch as we do not live
under a benevolent despotism.
3. Another shortcoming is over-emphasis on the technique of legal rules in
detail, with corresponding under-emphasis on policies, reasons, and prin-
ciples. This is a diflBcult thing to describe to those who do not sense it with-
out description ; but it is very marked. It is the kind of thing that is like
the dead bark on the outside of a tree, in contrast to the living, growing inner
core. Too much of our law is dead bark, — at least in the judicial opinions.
Two thirds or more of them are needless, — dry repetitions of well-settled
things. The treatment tends to become mechanical. Reasons are lost
from sight. The new generation of judges thus never hears of the reasons.
And so gradually " you cannot see the forest for the trees."
As examples of what opinions might be, but seldom are, in the exposition
of living principles, two good illustrations are Murphy v. Wabash R. Co.,
228 Mo. 56 (trespassers on a railroad track) and Coleman v. MacLennan, 78
Kan. 711 (privilege for libel).
4. Another shortcoming is undue servitude to the bondage of precedent.
The rightful dominion of precedent is indeed a profound problem in legal
philosophy ; and the present day, in Europe as in America, hears radical ques-
tions as to the defining of its scope.' But wherever its boundary be placed,
our own practice far oversteps it.
In the first place, the granite fixity of an exact precedent is unduly re-
spected; there is a fetish of immutability.
And, in the second place, the infinite variety of justice is forgotten. A
precedent is built up narrowly by them out of a few elements ; the really new
and special elements of the present case are not allowed to have any effect.
For example, if a court had once held that a passenger's alighting from a
moving train was negligence per se, and should then insist that it was bound
so to hold in every succeeding case where that fact occurred, we could all
appreciate the error of this bondage. Few courts have submitted to it in
that particular instance. But an equivalent bondage does enthrall them in
most topics of the law. Only, they do not realize how needless it is.^
»Vol. IX of the Modern Legal Philosophy Series ("The Science of Legal Method")
devotes itself to this.
' Head a recent opinion of the Kansas Supreme Court, on the use of dying declarations
in civil cases, to see a manly freedom from this needless slavery.
viii
PREFACE
Nor how futile ! For a main supposed virtue of stare decisis is the blessing
of certainty in the law. Yet that blessing has obviously failed us. And an
important reason for this failure is the hodge-podge use by one State Court
of the decisions of other State Courts. Except in four or five States, the
opinions are full of citations from other States. Those other States' decisions
are not binding as precedents ; their use tends to unsettle the law of the Court
that resorts to them. To rely upon a ruling from another Court, not in the
least binding, is of course to give a quality of optionalness in the use of prec-
edents. And so the genuine doctrine of precedents is every day under-
mined by this loose resort to the law of other States. We possess all the
drawbacks of having stare decisis, and also all the drawbacks of not having it.
The immediate causes of this loose practice are mainly two already men-
tioned,— the lack of thorough familiarity with the Court's own prior decisions,
and the facile resort to digests and compilations.
5. A shortcoming kindred in its nature to the preceding is over-consideration
of every point of law raised on the briefs. This shows faithfulness and in-
dustry ; for which we should be and are grateful. But it tends to remove the
decision from the really vital issues of each case, and to transform the opinion
into a list of rulings on academic legal assertions. The opinion is as related
to the meat of the case as a library catalogue is to the contents of the books.
This is far removed from the true and high function of the Supreme Court.
One immediate cause of it is the removal of the Supreme Court on high,
away from direct touch with the arena of the litigation. This peculiar
American separation of the trial judge from the appellate judge has tended
to make the latter more and more of a legal monk, immured in a Carthusian
cell and cultivating his little plot of the law's barren logic. But (as Mr.
Justice Holmes has said) " other tools are needed besides logic ; the life of
the law has not been logic ; it has been experience."
One more and a deeper cause there certainly is for this trait, — the sub-
stantial loss (temporary, let us hope) of the conception of justice, in contrast
to rule of law, as an element in every case. Whenever this conception shall
be restored to its due place, and judges shall be less timid about mentioning
the word, this defect will lessen. Read some of Chief Justice Furman's
recent opinions, in the Oklahoma Court of Criminal Appeal, to see how judi-
cial law can frankly express itself in terms of justice, when needed, and yet
maintain the true spirit of law. For the older generation, Lumpkin senior,
of Georgia, and Doe, of New Hampshire, are good examples.
6. Finally, another shortcoming is the one-man opinion. Of course, no-
body knows just how widespread this practice is. And the method of de-
liberation and decision of the issue, and of preparation and approval of the
opinion, differs widely. But even where in form it is an ample method, we
believe that (except for a few Courts, and for a few much-controverted cases
in the other Courts) the opinion is almost always intellectually a one-man
opinion. And that is what we lament.
PEEFACE
The standard we speak up fpr is that all the law of every opinion should be
intelligently affirmed to be law by every member of the Court. If not, it is
not Court law, but individual's law. And yet the very merit of a bench Court
is that it shall represent the fusion of all the variant knowledges, experiences,
temperaments, "and talents of five or seven or nine representative leaders of
legal thought, and thereby shall come as near to being safe and sound as
human devising can make it. This standard means, for example, that if
seven important issues of law are raised on appeal, and if one of them is a
supposed rule that a creditor, to maintain a bill to reach a fraudulent pur-
chaser from the debtor, must first have reduced his claim against the debtor
to a judgment, then each and every member of the court who signs the opinion
sanctioning or repudiating that rule must be able to say that he believes it
from personal familiarity with the sources of law in his State. ^ Anything
less than this is intellectually not a full Court opinion.
That full Court opinions, in this sense, are few, is the strong impression
given by the opinions themselves. The main cause for this state of things
is one among the complex of causes already mentioned, — the pressure for
quick despatch, created in part by the profession mobbing the appellate
courts with appeals, and in part by the community's disinclination to give
the judges ample time for the personal study of every case.
Two supposed shortcomings must now be mentioned, only to repudiate
their existence or relative importance. ■
7. Corruption and political bias. Amidst the ululations of the demagogues,
and the suspicions of the laity, it is a duty to express a sense ^of satisfaction
at the lack of reasonable grounds for complaint on the score of corrupt intent
and political bias. Few of us can know the hearts of any of the judges, —
whether attackers or defenders. We must rely for our working estimates
upon their attitudes as exhibited in their judgments of law upon the facts
of the cases submitted. Those data give us no right to form any sinister
impressions. On the contrary, they give us the right to be eminently satis-
fied, and all along the line of the States. Doubtless there are particular
judgments, now and then, for which the hidden motive of one or two judges
was either a corrupt subservience to a political creditor or a partisan political
basis. But, in the first place, these instances are negligible in estimating the
mass. In the next place, they represent (so far as they have occurred) not a
judicial shortcoming, but a shortage in the morality of the community; any
other number of representative lawyers that might have replaced them would
have contained as many men susceptible to such weaknesses. And in the
third place, in their effect upon daily judicial justice as a system, they are of
small consequence relatively to the habitual shortcomings already enumer-
ated.
Wliatever the significance of such instances in popular politics, they should
not blind us to the great fact that the daily labors of the fifty Supreme Courts
on the thousands of litigated cases are marked by conscientiousness and im-
PREFACE
partiality. Too much dust has been stirred up in pubHc discussion on this
issue. Wherever such charges are merited, they can and should be attended
to on the merits of each charge. But it is unfortunate that the clouds thus
raised about our judiciary have obscured the study of the real shortcomings
which habitually deteriorate the system of judicial justice, as a whole apd
every day.
8. Economic and class bias. This is another shortcoming of which much
has been made of late years. The fact, in some extent, cannot be denied. But
the question is, what is its significance for the steady qualities of our judicial
law?
In the first place, it was shared with the profession and the community as
a whole; it was not a peculiar trait of the judicial system. For example,
up to ten years ago there was not a voice raised to upbraid the judges with
the fellow-servant rule; none of us (virtually) knew any better.
In the second place, a main occasion for the apparent contrast between
judicial and public opinion has been the constitutional limitations upon legis-
lative power, committed to the judiciary for protection. This is a peculiar
governmental function, — something outside of the regular system of justice
in litigation. The issue raised by it is an issue as to the wisest method for
distributing political powers, — not an issue as to judicial justice.
In the third place, any shortcoming in this respect, on the part of the judges
when allotted that political function, is certain to be corrected by the force of
public opinion, whenever that opinion has itself been clarified and focussed
and has spread to the incumbents of the bench. Already, indeed, the bench
is seen, within only a few years, to have become responsive to this public
opinion. In other words, this shortcoming, being due to the judges' con-
victions on matters of general public conviction, is bound to right itself in
due season, — whatever may be the subject of the views. But the profes-
sional, the essentially judicial, shortcomings, will never be directly affected
by changes in current public opinion. They are technical, they concern the
judges' way of thinking about their own specialty ; hence they are esoteric ;
and general public conviction does not know about them and does not get
at them.
This is why the shortcomings that are going to remain habitual are more to
be concerned over. They are incurable, unless within the profession we set
about analyzing them and seeking consciously to remove them. And this
is why the emphasis has here been put upon the six traits already enumerated.
They are traits of the judiciary in the core of their professional work,—
traits of their way of doing justice under the law. And they are blemishes
on the system, as judged by a standard which our profession is capable of
appreciating and accepting.
I. The Judicial Decisions. B. In the Law of Evidence. What are the
special traits of the judicial attitude, in Supreme Courts, in their treatment
of the law of Evidence? We may assume it understood that the solid func-
xi
PREFACE
tion of the law of evidence is to assist the discovery of truth in trials, while
safeguarding the jury from false estimates of evidence, by means of rules of
exclusion based on long experience in jury trials.
1. Enforcement of rules regardless of Dispute over their Need. A cardinal
shortcoming is the judicial habit of enforcing a rule of evidence, regardless of
whether there is any dispute as to the need of enforcing that particular rule
in the case in hand. The rules of evidence, that is, are erected into a supreme
end in themselves. They are not restricted to their sole value, as tools for
truth. For example, a plaintiff suing on a contract for goods offers a copy of a
shipping receipt affecting part of the goods. The rule of evidence requires that
he should first show loss of the original. His showing does not disclose due
diligence. The rule forecloses him ; the copy is rejected ; the proof fails for
that part of the case. Meanwhile, the opposing counsel, except for his objec-
tion, sits silent ; the Court never once asks him, " Do you really dispute
the correctness of this copy ? Is there any word in it that is falsified ? " For
all that the trial Court or the Supreme Court knows or asks, the copy may
be exactly correct, and the opponent may have no bona fide doubt at all on
that point. If so, the rule's enforcement is a vain piece of legal tactics ; for
the sole and acknowledged purpose of that rule is to secure accurate copies.
If in fact the rule's sole purpose is achieved, it is functus officio, — ended, for
that case and that offer. Why use it merely to penalize the party ?
In thousands and thousands of rulings this is and long has been the way of
using the rules of evidence. No other applied science in the world uses its
rules in that way. Suppose an architect were to prepare the data for sinking
deep caissons in a sand subsoil, and then should find unexpectedly from the
drills that solid rock underlies three-fourths of his building area at a depth of
twenty feet. Would he go on to order the caissons, wait six months for
them, blast out the solid rock, and sink his caissons in spite of all ? He has
got his solid foundation without them ; shall he needlessly spend all the time
and money on them nevertheless ? There is only one answer to this for the
architect. But the judge with his rules of evidence doggedly persists in the
other answer.
Of late years, in England and Canada, the system of settling issues before
trial by a master or judge in chambers, and the general spirit of the Rules of
Court of 1883, has placed those courts (so we hear) where they should be
in the present respect. But in the United States no signs anywhere appear
of such a spirit. Read any brief; read any opinion. In vain you search.
The wrangling at the trial, and the logic-chopping in the opinions, go on per-
tinaciously, regardless of whether there is any real basis for dispute as to the
fact.
What is wanted is a principle something like this : A rule of emdence need
not he enforced, if the Court, on inquiry of counsel or otherwise, finds that there is
no bona fide dispute between the parlies as to the fact which the offered emdence
tends to prove or as to the danger which the rule aims to safeguard.
PREFACE
Such a principle, faithfully observed by judges, would clear the air of much
of the legal malaria now caused by the rules of evidence.
2. Trial Court given no Discretion. Another marked shortcoming is the
Supreme Courts' habit of treating the rules of evidence as a rigid steel-work
invariably applicable in precisely the same way. The rules are never allowed
to bend. The Supreme Court, sitting up aloft, far removed in time and space
from the actual trial, does not know whether the case was one in which the
rules might have been allowed to bend ; therefore the rules are rigidly en-
forced on appeal, and hundreds of new trials granted accordingly.
But this is highly academic and unpractical, — as unpractical as the cham-
bered abstractions of any professorial dryasdust. Every man of experience
knows that the rules of evidence are based on generalities, on broad policies
of experience, and are meant for typical situations, — but for those only.
We all know that in the application of them, from case to case, the abstract
situation, for which they are supposed to be meant, does not necessarily exist ;
it is varied,, in the case in hand. And therefore the rule should bend. For
example, one Supreme Court has a rigid rule of thiunb, for proving loss of the
original of a document, that inquiry must have been made of the last possessor.
This IS a very sensible rule, as a rule, but to enforce it rigidly without exception,
as that Court does, is the opposite of sensible.
Again, the application of most rules of evidence to the facts depends on
circumstances so varied and so elusive that no appellate court can expect to
be well possessed of them from the bare record. The trial judge, on the other
hand, is well possessed of them. Why should the Supreme Court insist on
including that part of the work in its function ? For example, a party desir-
ing to use a copy of a lost original must show due diligence in searching for
the original. This preliminary fact is best decided by the trial. Court. Yet
in hundreds of opinions the Supreme Courts attempt to pass on that question.
True enough, Supreme Courts are frequently found declaring that the ap-
plication of a rule was " in the trial Court's discretion, unless that discretion
was abused." But mostly, we regret to say, this expression is, as the Span-
iards say, mere palaver. For the Supreme Court then goes on to examine
elaborately the trial Court's ruling, and, as likely as not, reverses it. In
other words, it is often an abuse of discretion not to agree with the Supreme
Court, if the latter on its lesser information lakes the opposite view. The
Supreme Judicial Court of Massachusetts, on many rules, does faithfully
relegate their application to the trial judge. In no other Supreme Court is
any such habitual attitude noticeable.
What is wanted is a sharp distinction, faithfully enforced, between the rule,
of law and its application. On the former — the tenor of the rule — the
Supreme Court should determine. On the latter, the trial Court's ruling
should be final. And for most rules, the principle should also be recog-
nized that, for special reasons, an exception may always be made by the
trial Court.
PREFACE
3. Charging the Jury on the Weight of Evidence. Another radical short-
coming is the prohibition to the trial judge (outside of the Federal Courts
and those of a few Atlantic States) to express his views to the jury on the
weight of the evidence in the case.
This is a large question. Many members of the bar strongly prefer this
practice. Yet many others are coming to believe that the other and orthodox
practice, coeval with the jury system itself, is after all the only wise one.
But here it is desired merely to point out the way in which the present system
maximizes the weaknesses of the rules of evidence.
Those rules are mainly. aimed at guarding the jury from the overweening
effect of certain kinds of evidence. The whole fabric is kept together by
that purpose. The rules are supposed to enshrine that purpose. Hence, of
course, when such evidence enters in technical violation of that rule, the ap-
prehended harm may be done, — i.e. the jury may be misled or mis-affected
by it, to the hurt of the truth. And so, the harm being possibly or probably
done, but incurably, now that the jury has gone, the Supreme Court can only
say, " Try it over, with another jury."
But why use such a cumbrous method ? Why not let the trial judge correct
the possible misimpression by a few words at the trial ? In hundreds of in-
stances this can be done with entire effect and safety. Take the Opinion rule,
for example. A policeman, on a murder trial, telling about the bloody hatchet
he found, is asked, "Was it human blood? " and the answer gets in. " Yes, it
looked to me like human blood." Instead of ordering a new trial because
the jury might give to this layman's guess a value which it does not have, why
not let the trial judge say to the jury in his charge : " You must not pay any
attention, gentlemen, to the policeman's notion about the blood being human.
He knows nothing about the difference between different kinds of blood. He
is no expert in blood. You heard chemists here, on both sides, testify from
their analyses and give their reasons and scientific processes. Decide from
their testimony. Do not mind what the policeman thought."
Hundreds of petty slips could be amply corrected in this way. But not
under our present system. No ; the ponderous machine of a new trial must
be laboriously set going again from the beginning ; all the complicated levers,
cranks, cogs, and wheels must turn once more ; and vast effort and tedious
time again be consumed, — -all to do what could as well be done by merely
removing the gag from the trial judge's mouth.
Any one who will study the opinions of Supreme Courts can satisfy himself
that the permission to the trial judge to express his opinion on matters of evi-
dence would remove a large part of the supposed harm done by trifling trans-
gressions of the rules of evidence, and would thus remove much of the abuse
of new trials.
II. The Law of Evidence ; its Faults and its Future. Suppose that we were
now to change the law of Evidence, at needful points ; what changes should
be made ?
PREFACE
Before offering a critical summary of such changes, three or four general
facts must be rehearsed ; for perhaps we do not all realize them to be facts,
and perhaps extreme partisans on either hand will benefit their cause by con-
ceding them.
1. A complete abolition of the rules is at lealst arguable, — not merely in
theory, but in realizable fact. They are to-day mostly ignored in the prac-
tice of four important jurisdictions, — in the Interstate Commerce Commis-
sion, in Patent litigation, in Admiralty trials, and in (some of) the Juvenile
Courts. This shows that, in the United States and to-day, justice can be
done without the orthodox rules of Evidence.
These four exceptional cases are of course explainable as abnormal. In
the first place, there is in all four practices no separation of jury and judge ;
and the safeguarding of the lay jurors from misleading evidence is a main reason
for the orthodox system of Evidence. In the next place, there are no lawyers
(ordinarily) in the Juvenile Court ; while, on the other hand, the practice of
the first three classes of cases named is chiefly in the hands of a select group of
specialists, both judges and lawyers ; and this makes for mutual confidence,
discouraging petty evasions of the rules, and also petty insistence upon them.
And there are other explanations. The one place, however, where the absence
of the rules receives a fair test most nearly approaching (but for the jury) the
conditions of ordinary civil and criminal jurisdiction is the Juvenile Court, —
at least, the Chancery type of it (as in Illinois and Colorado), not the Criminal
Court type of it (as in New York). Whether"it can permanently demon-
strate its ability to dispense with the rules, remains to be seen. Meanwhile, it
must not be taken as a demonstration, but merely as a suggestion that the
thing is not so impossible as the Bar would have supposed, ten years ago.
2. To abolish the bulk of the rules, in the ordinary courts, would be a, futile
attempt. To pass a law (supposing this possible, in the hasty manner of our
" freak " legislation) would amount to little or nothing. You cannot by
fiat legislate away the brain-coils of one hundred thousand lawyers and
judges ; nor the traditions embedded in a hundred thousand recorded deci-
sions and statutes. And thte plain fact is that trials are to-day being man-
aged by these men and these books, as the living receptacle of the rules.
More than this, the temperament is there, — the temperament in which the
rules find a solid lodgment and nourishment. The thing has been tried in
many countries an,d in many ages ; and as a reform it has never succeeded
(exceptions excepted), even when enforced by a powerful government. As an
importation of alien law (which is not the case in hand), it has sometimes
succeeded, but only after a century or more of slow pressure. Any one who
knows our profession from within knows that it would be a vain dream to
think of abolishing the rules of Evidence, as a system, until all mature prac-
titioners and judges now alive had passed into the grave. And in the mean-
time, since trials must go on, a new generation will have been bred into the
same system.
XV
PREFACE
•
Furthermore, assuming that the fiat were issued, and accepted, the new
method would have all the risk of an experiment only. We cannot be sure
how it would work. We have no experience except under the present system.
The present one has some deep roots in the necessities of human nature.
And, as human nature will go on just the same, can we expect to handle it
without any rules at all ? Certainly as much false justice may be done by a
chaotic trial as by a chess-game trial. Do we know that our judges and our
lawyers, as men, and without any rules, will be able and willing to manage
the ordinary jury trial, in matters of proof, as successfully as (for example)
the Interstate Commerce trials are managed?
And so, much as we might wish to try the experiment, and promising as the
other examples may be, it is hopeless to plan such a radical change. We may
as well realize that the change will have to come as a growth, — a growth of
improvement both in the rules and in the men. And this is the way in which
almost all legal progress, that was -progress, has come about.
3. Most practitioners, to-day, are unskilled in the rules of Evidence. This
is a hard saying; but those who ought to know report it so unanimously.
The trial judges know the rules better, but still imperfectly. Is it not start-
ling to reflect on the meaning of this?
It means, in the first place, that the rules to a large extent fail of their pro-
fessed purpose. They serve, not as needful tools for helping the truth at
trials, but as game-rules, afterwards, for setting aside the verdict. iNeither
lawyer knew them well enough to avoid numerous violations of them at the
trial ; but afterwards the defeated lawyer (having duly emitted a gatling-gun
fire of objections) studied a few of them for the purpose of pointing out on
appeal his opponent's errors. If, then, the new trial is needed because neither
the successful lawyer nor the trial judge knew the niceties well enough, then
by hypothesis the system of evidence failed, after all, for that trial, to accom-
plish its purpose.
And, in the second place, it means that there are thousands of trials in
which neither attorney knew enough either to observe the rules' niceties or
even to point out his opponent's errors, and yet a verdict was reached which
satisfied the judge. In other words, owing to ignorance of the rules, they were
not enforced, and yet justice (presumably) was as well done as if they had
been enforced. How far this is the fact, no one can know. But the wide-
spread ignorance of the rules shows that it mv^t be a large fact. And the
moral is that we can probably get along just as well without enforcing many
of the niceties of the rules.
4. The jury of laymen must be reckoned with. Our system of Admissi-
bility is based on the purpose of saving the jurors from being misled by certain
kinds of evidence. Their inexperience in analyzing evidence, and their un-
familiarity with the chicanery of counsel, distinguish them from the judge in
this respect. As long, then, as the jury system is retained, certain funda-
mentals (at least) in our rules of Evidence must be retained.
xvi
PREFACE
To be sure, the jury itself might be aboHshed. Here we have the examples
of the Interstate Commerce Commission, and the others, to warrant us in
supposing that the rules of Evidence might no longer be needed. Will it be,
or should it be, abolished ? This is a hard question, nowadays, for some to
answer ; for a few, it is easy. For some of those few, it is easy to answer : No,
In the first place, no one would think of abolishing jury trial merely to>
enable the rules of Evidence to be discarded. It would have to go by reason
of its own defects, if at all.
In the next place, its own defects may be incidental and remediable, not
inherent. They have never been fully examined with this distinction in mind.
Some of them are obviously incidental accretions of American practice, and
are no essential part of jury trial ; for example, evasion of jury duty by re-
sponsible citizens, excessive challenging,, over-nice disqualifications. All
these have tended to reduce the intelligence of the jury ; and a restoration
of jurorial intelligence (which the change of these practices might effect)
would render so much the more needless the precautions of the rules of Evi-
dence.
Again, the constitutional limitations upon jury trial have prevented (ex-
cept in three or four States) any experimenting with a jury system improved
but not abolished. It will be time enough to flee to our Charybdis, the judge-
jurors of fact, when we have sufficiently tested the possibilities of our Scylla,
the lay-jurors of fact. Till then, it will be wiser to wait.
We must keep in mind, then, that the modern American jury's defects are
in large part non-inherent and remediable, and that we have experimented
very little with its great possibilities of improvement. How, then, can we
fairly propose its radical abolition?
With this in mind, and also the vast popular agitation which must inevi-
tably precede any radical step, it is safe to assume that jury trial will be with
us for at least a generation to come. If so, the improvement of the rules of
Evidence must be made with the retention of the jury as a necessary con-
dition.
5. Our system of Evidence is smiTid on the whale. In the first place, it was
and is based on experience of human nature, — and that is saying a great
deal for it. It was not created by legislative fiat, — like our Patent law. It
was not devised by chambered jurists, — like the German Civil Code. It
was not (for the most part) founded on anachronistic tradition, — like some
of our Property law. It simply grew. And it grew during the last two cen-
turies, so that its human nature basis is not far enough away to be possibly
out of date.
That human nature is represented in the witnesses, the counsel, and the
jurors. All three have been considered, in their weaknesses. The multi-
fold untrustworthinesses of witnesses ; the constant partisan zeal, the lurking
chicanery, the needless unpreparedness, of counsel ; the crude reasoning, the
strong irrational emotions, the testimonial inexperience, of jurors, — all
PREFACE
these elements have been considered. Tens of thousands of trials have forced
them out into the open, where thousands of judges have observed them ; and
their observations have profited by them, in thinking out principles and for-
mulating rules.
All this has not been created out of nothing; it rested on a solid basis
■of experience in human nature at trials. And that human nature has not
essentially changed. The main basis is there yet. The changes have not
been in the great factors.
The rules of Evidence, then, are to have at least that presumption in their
favor which sensible critics always give to the conclusions of experience, even
when all of the data of that experience are not specifically known to the critic.
In the next place, that human nature, in the same factors, will always be
~vvith us. Witnesses, counsel, jurors, will continue to exhibit similar weak-
nesses. The trial will always be struggle, revealing nakedly those weaknesses.
And there will always have to be some apparatus for testing and checking
those weaknesses. We can expect to improve the apparatus, but not to
ignore the weaknesses. And just as long as man continues to be a reasoning
animal, and to desire to profit in his narrow personal task by the combined
experience of others, just so long will trjal judges crave and devise generalized
rules for making some headway through the welter of lies and errors and
doubts and documents and inferences that is heaped up before them at a trial. '
The lone judge seeks support and relief in these generalized rules. He cannot
intellectually avoid it. Make him (and not the jurors) the judge of facts and
he will seek it just the same. For four centuries the fact-judges of Conti-
nental Europe worked with a system of self-devised mechanical rules, which
they have now for a century repudiated as shackles; but what now seem
shackles were but the effort of the helpless human individual, weighted down
3by his responsibility and his doubts, to seek relief in a system of rules. And
it may safely be asserted that one reason why the modern American trial
judge (since 1850) has so unduly exalted the " technicalities " of Evidence
rules is that he is less sure of himself, less strong professionally and tem-
peramentally, than his American predecessors and the English judges, and
hence seeks relief and refuge in the elaborate system of rules of Evidence^
And so we may as well understand that (for some time to come) the tendency
to keep a system of rules of Evidence, as a refuge for the judge in handling
the problems of human nature, will be inescapable.
And, in the third place, the present rules as a whole are sensible ones.
Taking each of them in the big, there is hardly one that is not based on some
aspect of human nature, which needs some such a rule of warning. (Always
the Opinion rule must be excepted ; for that was never anything but a futile
historical bastard.) And, when out of the whole bundle, we select the three
or four great principles which clash most sharply with the practice" of other
countries, — the hearsay rule, the character rule, the privilege against self-
crimination — we find that they are among the contributions of Anglo-
American character to the world's types of justice ; they represent deep traits
PREFACE
of variant civilizations, bound up with our whole attitude, — not to be lightly
changed, nor without changing ourselves.
The way we use the rules is one thing ; but the rules themselves are quite
a different thing. Our abuse of them should not obscure our minds to the
good sense that is in the rules. And the petty details and infinitesimal ab-
surdities to which they have been elaborated need not force us to disown the
substance of their good, any more than the systematic excesses of college
athletics oblige us to reject the sound core of physical training for youths.
6. Our judges and our practitioners must improve in spirit, as a prerequisite
for any hope of real gain to be got from better rules. In the end, the man is
more important than the rule. Better rules will avail little, if the spirit of
using them does not also improve.
Counsel must become less viciously contentious, more skilful, more intent
on substance than on skirmishing for a position. The whole condition of
below-par, now noticeable, is here involved. It has many symptoms and
many causes. Enough here to note that some of them directly affect coun-
sel's handling^ of the Evidence rules.
Judges must become stronger and better equipped at the trial bench,
and more liberal and more justice-seeking on the appellate bench. The rules
must be treated only as means to an 6nd ; and this cannot be until the men
on the bench see them in that light and make it a prime aim to treat them so.
The rule is the complement of the man. The weaker the man, as a dispenser
of justice, the more the rule is exalted and the stiffer its bonds become. Im-
provement of the rules will need more sympathy and intelligence to handle
them effectively.
ALL THE RDLES IN THE WORLD WILL NOT GET US SUBSTANTIAL JUSTICE
IF THE JUDGES AND THE COUNSEL HAVE NOT THE COKRECT LIVING MORAL
ATTITUDE TOWARDS SUBSTANTIAL JUSTICE.
And now, with these premises, we may survey the merits and needs of the
rules of Evidence themselves.
Merits and Needs of the Rules of Evidence. A. In general. The three
general defects, running through the whole system — in its use, mainly, not
so much in its fabric, are : Inflexibility, Exaggeration of Details, and Exag-
geration of Errors.
1. Inflexibility. This is a plain enough vice. It is due to the exaltation of
the rule into an end in itself, instead of a means to an end, viz. a correct verdict.
How can this vice be got at? By applying measures which involve least
change with most efficiency. These would seem to be three.
(a) The . rules are now enforced, as such, regardless of whether a dispute
exists in the case in hand, which the rule would serve to safeguard. This
defect has been already enlarged upon (supra, I, B, 1 ; p. xii). To remedy it,
a simple expansion of the principle of Judicial Admissions will furnish the tool.
Let the Court decline to enforce the rule if, on counsel's admission, there is
PREFACE
no need for it in the case in hand ; and let the Court require counsel to make
proper avowals.' Put in the form of a Code section, this principle might be
thus phrased : " A rule of Evidence need not be enforced if the Court, on inquiry
made of counsel, or otherwise, finds (a) that there is no bona fide dispute between
the parties as to the fact which the offered evidence tends to prove, (b) or as to the
danger which the rule aims to safeguard." This principle may to some seem
somewhat loose. But the law of Evidence needs a good deal of loosening;
and in this respect, at least, we can afford to do some experimenting.
(6) The rules, as now enforced, are not left at all to the trial Court's deter-
mination, but are defined and applied by the appellate Court. This defect
has already been outlined {supra, I, B, 2; p. xiii). The question is how to
get at it, without abdicating the appellate Court's function of defining the
law. A fair and workable distinction would seem to be the distinction be-
tween the tenor of the rule itself (which is the main thing to safeguard), and
its application to the specific offer. This distinction could be enforced in the
following form : ^
"1. In all rulings upon the admissibility of Evidence, the trial judge's ruling
is final and absolute; subject to the following distinctions and exceptions.
" 2. The trial judge is bound to obey the rules of Evidence, and therefore
does not have discretion, in the sense of determining the admissibility of evi-
dence by his personal views or changeable beliefs as to what is just.
" 3. The trial judge's determination is not final {i.e. it is subject to the
usual methods of appeal) in so far as his statement of the tenor of a rule of law
is objected to as an erroneous statement of the rule.
" 4. The trial judge's determination is final,
" (a) In the application of a rule of Evidence to a particular offer of evi-
dence; and
" (6) In the finding of any facts preliminary to or otherwise involved in
the application of the rule to the offer."
If the bench and the bar could stomach this simple dose — a mere extension
of the present principle of judicial discretion — a vast mass of needless matter
would be purged from our system of trials and appeals.
Here again, however, we encounter the man-element — the need of per-
sonal improvement, not merely of better rules. In many (or most?) trial
courts to-day, and in many (or most?) trials, the typical incident is : Counsel
A: "Now state to the jury what you thought — " ; Counsel B: " Object ! " ;
Judge: " Objection overruled ! " ; Counsel B : " Exception ! " And so far
as this blind and unintelligible canine snarling and yapping may be assumed
to be an incurable trait, no rule like the above could serve. For, to that end,
in the first place, both judge and counsel must know what rule is supposed to
1 How the Court should deal with disingenuous counsel is a large problem, which itself
also needs attention. This shows how the improvement of Evidence rules is bound up with
other improvements.
2 In the writer's "Pocket Code of Evidence," these phrasings have already been put for-
ward (§§ 49-52), with some comments.
PREFACE
apply ; and, next, the rule must be openly stated so as to separate the rule
itself from its application. Until all court officers improve in knowledge and
in spirit, no improved law can serve the situation. How disgraceful and
degraded it commonly is, we seldom pause to reflect. And its worst feature
is that it has dragged down our most accomplished and highminded practi-
tioners to employ their talents in this ungentlemanly spectacle.
(c) The rules are now enforced with over-strictness, on appeal, because
there is no corrective to avoid the possible misleading of the jury's mind by the
violation of the rule. The trial judge being a mere umpire — and a dumb
one, at that, as to the jury — the appellate Court feels obliged to order a
new trial, and thus to vindicate the rule. If the appellate Court could
have some assurance that the jury had been duly warned of the net value
of the evidence, it would not feel bound to treat the error as vital. In
other words, a large part of the sacred inflexibihty of the rules, in the
appellate Court's treatment, is due to the lack of any dependable corrective
at the trial.
That corrective is the trial Court's charge on the weight of evidence. This
needed remedy has already been outlined {supra, 1, B, 3 ; p. xiv). Enough
to say here that the abandonment of that orthodox practice, fifty or sixty
years ago, was one of the greatest mistakes the American people ever made.
The sin of our fathers is now being visited upon us. And the depressing fea-
ture is the bigoted alarm which so many good practitioners feel at the pro-
posal to revert to orthodoxy. They shudder with the needless dread of the
blindfold fraternity neophyte who at his initiation extends his arm to be
branded with — a lump of ice ! And they seem unwilling even to reflect upon
the surviving example of the Federal system ; for the latter's concededly ex-
cellent method is within every one's reach to observe in a hundred courts
all over the land ; and yet the conservatives act as though the judge's charge
on the evidence were something anachronistic and un-American, suggestible
only by a revived emissary from King George the Third.
What is wanted is a general return to this safeguard of jury trial, in some
such principle as this :
" The judge may express to the jury, after the close of evidence and argument,
or from time to time before then, his personal opinion as to the credibility or
weight of the evidence or any part of it."
The foregoing three measures, then, are both needful and practicable for
removing the first great defect of our rules, their Inflexibility.
2. Exaggeration of Details. This next great defect is hardest to get at.
It cannot, apparently, be got at directly. You cannot stop the working of
logic. And if the working of that logic — say, of the rule for accounting for
the absence of an original document before using a copy — leads to numerous
petty detailed rules, each one unavoidable in logic, the problem of drawing a
line somewhere and declaring " Here the rule shall stop ; it is getting too
refined and subtle and petty" — this problem is practically insuperable.
PREFACE
considering the difficulty of reaching an agreement as to a thousand such
points and as to communicating this agreement to practitioners and judges.
So the remedy must be sought by indirection. In other words, minimize
the effect of such details. What specific measure could avail to this end, we
are unable to suggpst.
3. Exaggeration of Errors. ' This third defect lies at the doors of the ap-
pellate Courts. The nauseous and intellectually disgraceful doctrine of
" reversible error " has too long stained the pages of our appellate opinions.
Much has been written and legislated against it ; and time will bring its com-
plete erasure from our records. ' No more need be said against it here.^
But a warning should be sounded against futile measures. They are
too commonly seen in the phrasings of legislative proposals. They com-
monly run : No new trial shall be granted where the errors " do not affect
the substantial rights of the parties," or " do not cause any manifest wrong
or injury," or " do not prejudice the defendant," etc. These abstract terms
do not bind the minds of judges who believe that there are vested rights in the
observance of the rules of Evidence. — Another form runs : No new trial
shall be granted " if the evidence erroneously admitted or excluded would
not have changed the result." But this form, conversely, is too narro^v ; for
it obliges the appellate Court to speculate upon what the jury would have
done, and this speculation will easily lead to reversals on far-fetched hypoth-
eses. — The sound form requires the appellate Court to determine accord-
ing to what the jury should have done. And more than one Court has gone
to this length, in these words : " We do not reverse for the error, because the
verdict rendered is the only one that could have been rendered by the jury,"
or "because we can clearly see that a correct result was reached by the jury."
We now come to consider the specific rules of Evidence.
B. Changes in Particular Rules.
The question is to be asked, for each of the main rules : should it be aban-
doned, or at least be radically altered?
The order of topics used in this Treatise may be followed. The three
main groups are (in Book I, What Facts are Admissible) : Part I, Rules
of Relevancy ; Part II, Rules of Auxiliary Probative Policy ; Part III, Rules
of Extrinsic Policy.
Book I. What Pacts are Admissible. Part I. Rules of Relevancy, etc.
Here we have three further groups : Title I, Circumstantial Evidence ; Title
II, Testimonial Evidence ; Title III, Autoptic Proference.
Title I. Circumstantial Evidence. There are here three general controlling
policies, viz. the avoidance of Undue Prejudice, of Unfair Surprise, and of
Confusion of Issues. But these policies result in but two main rules, and the
multiplicity of sub-rules and exceptions is due to the firm instinct of Courts
' See § 21 of this Treatise and Supplement,
xxii
PREFACE
to avoid trespassing on these two main rules. One of them is the rule against
using Personal Character ; the other is the rule against using Particular In-
stances .of External Happenings.
1. The rule against Character. This appears in two further separate rules.
One forbids the use of a party's general traits of character, unless exceptionally ;
the other forbids evidencing it, in the excepted classes of cases, by particular
instances of conduct, unless exceptionally. The former rests on the policy of
avoiding Undue Prejudice; the latter rests on the same policy, plus those
of avoiding Unfair Surprise and Confusion of Issues. Are these policies
sound in the main, as represented in those rules ?
We are convinced that the policies and the rules are sound. In the main.
(1) The policy of avoiding Undue Prejudice is based on weaknesses of human
nature which are to-day as obvious as ever. In criminal cases, this policy
is one of those that marks off the Anglo-American system from the rest of
the civilized world. Nothing in the French system attracts us to believe
either that it is intrinsically better than ours, or that it would be workable
with our judiciary and juries. Our own rule represen,ts a safeguard against
a real danger to which the search for the truth will always be liable so long
as the decision of facts is committed to any but Solomons. The failures of
justice, now observable in the pursuit of offenders, are not attributable to
this rule, but to many other and independent conditions. — In civil cases,
the rule is equally needed, especially in personal injury cases, where emotion
is apt to overpower calm reasoning. — What is needed, however, is less fetish-
worship of the rule. With the proper safeguards of the judge's charge on the
weight of evidence, of a sane rule for new trials for error, and the like (noted
ante, pp. xii-xiv), no obstruction to justice need be apprehended from this
policy. (2) The policies of avoiding Unfair Surprise and Confusion of Issues
are much less important, and have been greatly overworked. The dangers
they are meant to guard against are merely exceptional contingencies. Cast-
iron rules are not suitable for protecting against such contingencies. Flexible
rules are here the need. The principle of the trial Court's discretion {ante,
p. xiii), with the other relaxatory rules above noted, would here furnish
ample protection. Most of the thousands of rulings here involved could as
well have been disposed of by those principles, and need not have cumbered
oiu" records ; while the general principles would have been preserved.
2. The rub against Particular Instances of External Happenings. Of the
three great policies above mentioned, here the second and third are chiefly
involved, — i.e. avoiding Unfair Surprise and Confusion of Issues. Most of
the rulings here recorded are far-fetched; many of them were needless
obstructions to the search for truth. The policies are sound enough,—
emphatically so. The evil has arisen from using the policies as inflexible
rules. They apprehend merely contingencies. They are as if a man re-
solved never to go out of the house in winter because he feared that he might
slip down on the ice ; but the sensible man goes out, keeps a watch for icy
spots, and then steps around them. Here again the principle of the trial
xxiii
PREFACE
Court's discretion would bring almost all of the needed relief. Justice Doe's
opinions have demonstrated this, once for all.
3. Sundries. There remain the miscellaneous mass of sub-rules which
are due, directly or indirectly, to the purpose of not infringing on these
other main rules ; e.g. the rules about admitting former crimes as evidence
of Intent, etc. These present a difficult problem. As long as the above
main rules of exclusion are kept, and no matter how much they are liberal-
ized, the task of defining the boundaries will be inevitable. Our best hope
is that this minor mass of quiddities can be sufficiently taken care of {i.e. to
prevent obstruction) by the general safeguards already proposed (ante, pp.
xx-xxii), — the judge's charge on the evidence, the liberal new trial rule,
the trial Court's discretion, etc.
Title II. Testimonial Evidence. This includes three groups of rules, for
Testimonial Qualifications, Impeachment, and Corroboration, respectively.
1. The rules requiring certain Testimonial Qualifications. Here the sound
general policy suited to the times is to complete the abandonment of rules of
exclusion, and to rely upon the testimony itself for criteria of its weight.
For one reason, the tendency of a century past has been in this direction.
For another reason, the present lines of definition of the elements which make
a witness admissible are out of harmony with the teachings of science, and
have become merely arbitrary. No one can maintain that there is ia
reality any such vital distinction as the law now draws between witnesses
that may be listened to and weighed and witnesses that may not be listened
to at all.
(1) In the first place, the few remaining rules of exclusion based on Mental
Derangement and Immaturity may as well go. They are vain.
(2) In the next place, the rules, now remaining in many States, excluding
a person Convicted of Crime, must go. They have been anachronisms for
fifty years. They are arbitrary and futile obstructions.
(3) In the third place, the rule universally in force (except in four or five
States) against the Survivor of a transaction with a Deceased Person, must
go. It is of a piece with the long discarded disqualification of interested
persons. It involves a mass of verbal technicalities, and it shuts out at
least as much truth as falsehood.
(4) In the fourth place, the disqualification of Husband and Wife to testify
on behalf of each other (still preserved in about a third of the States) must
go. It was repudiated sixty years ago in England.
(5) Finally there is the rule requiring Personal Observation by the witness'
own senses. This is a healthy rule, — no wiser or safer was ever devised.
It raises the quality of our verdicts, by forcing the parties to seek for the
most trustworthy testimony. But it needs to be more flexible. It should
have numerous general exceptions; and it should receive constant excep-
tions, without definition, for casual details, in every witness' testimony,
where its strict enforcement is pedantic. Here, again, the principle of the
PREFACE
trial Court's discretion, with the others already noted {ante, pp. xx-xxii),
would bring most of the needed relief.
(6) The rules for Refreshing and Recording Recollection are a trouble-
some snag. They are based, indeed, on good sense and logic. But the his-
toric precedents have left the law much confused; its distinctions are of
little real importance compared with others which modern science points
out but the law does not enforce ; and the present rules cannot be administered
without barren technicalities, difficult to master. On the whole, they seem
to do more harm than good. Reliance on cross-examination would probably
answer the purpose, together with two or three simple rules that could be
retained.
2. The rules excluding certain modes, of Impeachment. As to general con-
siderations, it would seem that we overwork certain modes of impeachment,
and that we underestimate others. Apparently, in the Continental coun-
tries, little stress is laid on these things, — not enough, to be sure. We
possess the great sound idea, viz. that you never can tell how credible a
witness' assertion is until he and it have been thoroughly scrutinized in
every aspect. Here modern psychological science confirms our inherited
tradition.
But where we part from science is in overemphasizing certain elements
and underemphasizing others.
What we overemphasize is the witness' moral character. No need to
expound here the several details of this fallacy. " No case ! Abuse the
opponent's witness," — thisanec4otal instruction to a certain counsel expresses
truly enough the tendency too frequently seen with the mass of trial prac-
titioners. Probatively, the cause is seldom advanced, by these methods, as
much as we think.
What we underemphasize, on the other hand, is the study of the witness'
personal equation as to temperament, memory, the bases of perception, etc.,
etc.^ We are satisfied to use a few practical expedients — contradiction,
self-contradiction, etc. — without really understanding their probative force.
What we need, therefore, is to develop the study of testimony as affected by
these various elements, and to lessen our reliance on the crude bludgeon of
character-evidence. But this must be a development of the future.
Now as to the specific rules of exclusion. They hardly need radical change ;
the change should come mostly in the manner of using what is already ad-
missible.
(1) The rule excluding proof of specific instances of misconduct by extrinsic
testimony does very well ;' -it is based mainly on the sensible policies of avoid-
ing Unfair Surprise and Confusion of Issuefe. The rule allowing such in-
quiries (in all but a few States) on cross-examination of the witness himself
is a fair rule, — when left to the trial Court's discretion, and not dragged up
needlessly (as it usually is) to become an appellate Court question.
I See the passages collected in the present writer's "Principles of Judicial Proof "
(1914).
PREFACE
(2) The rule excluding contradiction and self-contradictions, when evi-
denced by other witnesses, on " collateral " points is another healthy rule,
— easy to administer if left to the trial Court's discretion.
(3) The rule requiring a prior inquiry to the witness before proving a self-
contradiction is a sensible one; but it is enforced with needless and harmful,
inflexibility. It should have several general exceptions, and should be left
entirely to the trial Court's discretion. That application of it to documents,
known as the rule in The Queen's Case, is a lamentable error in logic and in
policy, long ago discarded in England and some of our States, and should be
abolished out of hand.
(4) The rule against impeaching one's own witness is an irritating relic of
worn-out tradition, — a relic of the Saxon days of the compurgation-system.
It does as much harm as any one rule in our system. No party " owns " a
witness, and this rule tends to cultivate the too natural features of partisan-
ship which must always attend our system of' trials. If a witness is unworthy
of credit, let this be shown up, no matter who first called him. If the counsel
has been guilty of disingenuous conduct, let the Court deal with him. None
but fantastic reasons were ever put forward for the present rule.' As great
a criminal judge as Chief Justice Furman has spoken in favor of the rule;
and that obsession, no doubt, is widespread. But it is an illusion, which
would be dispelled by a short experience under trials without the rule.
3. The rules excluding certain modes of Corroboration. These seem to be
more or less futile, and not worth while keeping. What they now exclude
would not seriously infringe on the policy of avoiding Confusion of Issues,
and does involve some useful probative material. We know so little scien-
tifically, as yet, of the logical and probative bearings of this kind of evidence
that we can hardly afford to exclude any of it. One kind, in particular, the
Courts perversely shut out, under the present rules, viz. a witness' identifica-
tion of a party when first confronted with him before trial and freshly after
the event ; for the sake of eliminating this incredible perversity, it would be
a fair bargain to let all these rules go, — if that were necessary.
4. The rules for parties' admissions should be liberalized. And yet, to
enlarge their definition would, of itself, probably be of little avail. The
Courts are to-day looking at this subject through the large end of the tele-
scope ; the principle looks to them unduly narrow. Their timidity at receiv-
ing agents' admissions, in particular, must improve; here the practice of
courts is far away from the realities of commercial life. The subject, more-
over, is to-day loaded with logical quiddities, more or less futile.
Title III. Autoptic Preference. Here we are fortunate in having with-
stood successfully the pressure to adopt any rule of exclusion for autoptic pro-
ference at the trial.
But for preference out of court, i.e. the jury s view of a place or object
irremovable into court, we are still laboring under a rule of exclusion which
is so unscientific and so unpractical that to call it childish would be unfair
PREFACE
to the intelligence of childhood. The still prevailing limitations on jurys'
views come down to us from the technique of feudalism; England herself
has long shaken them off; but (except in a few States) we remain supine.
If a sensible man wants to make sure whether a window is broken or a house
burned down, he puts on his hat and goes out and sees for himself what the
fact is. But our Courts seem to regard a jury's view as if it were an act which
would expose them to an infectious disease or a moral contamination. And
all related methods, such as the inlpounding of an object causing damage,
or the preparatory inspection of premises by witnesses, are equally frowned
upon, so far as the Courts' assistance is concerned. One timid Court, for
example, in the case of a boiler explosion, where the common-sensed sheriff
had . impounded the boiler so that proper evidence of its possible defects
could be timely obtained, pronounced it a wrongful act and made the sheriff
liable in damages ! — This whole spirit of impotence must be abandoned.
To that end, the present limitations of rule must be replaced by the un-
limited English rule, which goes beyond the halfway measures now in the
Codes of California and a few other States.
Part II. Rules of Auxiliary Probative Policy. Many of these are the pecul-
iar product of the Anglo-American genius for practicality, and in principle
are wise and indispensable. A few of them are barren technicalities. A
few of them are the product of our American distortion of the jury-system,
and their change would be bound up with other conditions.
Title I. Preferential Rules. 1. The rule for producing the original of a
document, where that original is available, is a rule of practical good sense,
which no one need think of abandoning. And its details have been worked
out, on the whole, with only necessary logic and consistency. Its trouble
now seems to be that there is too much logic about it, i.e. the mass of detailed ,
applications of it form so cumbrous a mass that, though their logical con-
nection may be unimpeachable, they are practically unmanageable. To
apply the details with such minute correctness is not worth the while, in
most cases.
This is a hard situation to meet, by mere rule. A few Courts have tried to
cut the Gordian knot by holding the rule to be not enforceable when the
document is merely " collateral " ; but this, though a move in the right
direction, has not been successful. Much could probably be accomplished
here by the two general principles already noted (ante, pp. xx-xxii), viz. judi-
cial dispensation of the rule where the parties are really not in dispute over
the probandum, etc., and trial Courts' discretion in the ruling.
2. The rule for calling the attesting witness has, by legislation everywhere,
already been reduced to a minimum of obstructiveness ; and what remains
is sound in principle. It needs only an infusion of flexibility, which the general
principles already noted {ante, pp. xx-xxii) could presumably effect.
Title II. The Hearsay Rule. We come here to the greatest and most
distinctive contribution of Anglo-American law (next after the jury trial)
PREFACE
to trial procedure. Bentham thought this much of it, and we can afford
to continue in that conviction.^ But if it is the greatest and most valuable,
it is also (like other great truths) overworshipped and overworked, —
especially in its unessential details. The diflSculty about it is that it has two
principal aspects, one of which is vital and the other is not.
(1) The vital aspect is that we are not to credit any man's assertion until we
have tested it by bringing him into court (if we can get him) and cross-examining
him. Now the development of this art of cross-examination, during two
centuries, is the great valuable contribution of the rule. And modern psy-
chological science confirms emphatically this empiric result; for it has
shown us something of the hundred lurking sources of error that inhere in all
testimonial assertions ; and we now perceive that our traditional expedient of
cross-examination was the true way to get at these sources of error, and
that it owes its primacy to permanent traits of the human mind. To abandon
our insistence on the necessity of this test Would be to surrender the best
single expedient anywhere invented for getting at the truth of controversies.
For this reason, the abandonment of the Hearsay rule, in this vital aspect,
is unthinkable.
(2) But it has another aspect. By the rule for a witness' qualifications,
personal knowledge is required, and this works out as follows : The witness
who testifies about an affray between A and B at the corner of Broad and
Washington streets must have been at the corner of those streets where he
could see and hear the matters he testifies to. So that if witness X begins
to testify about the affray, and it appears that he saw and heard nothing of
the affray itself, but merely sat next to Y in a street-car going home and
heard Y's story of the affray, we discard X immediately and insist on having
Y; because X would be giving us virtually nothing but Y's assertion,, and
we will not accept Y's assertion unless it is made here in court where we can
test him and it. Now thus far we are merely enforcing the Hearsay rule in
its vital aspect ; i.e. we are refusing to credit Y's untested assertion, offered
merely through X as a mouthpiece, — precisely as we should have refused
to receive a letter written to the judge by Y. But suppose that X, the first
witness, was actually at the street-corner in issue, and did see and hear the
affray, and thus is fully qualified with some basis of personal observation for
his assertions ; then, when he launches into his story, we may expect to find
interspersed in it : " As I came up to the corner, I heard the clerk in the
drug store shout, ' Who threw that stone at the window ? ' . . . And the
boy said, ' There come the police.' . . . And when he went off, a man said,
' Here is the knife he dropped,' and I gave it to the policeman and said,"
etc., etc. It is at this point that the Hearsay rule is overworked. This is
its incidental aspect, i.e. logically, each one of these quoted remarks is a hear-
say assertion, and we must exclude it and wait till the various persons them-
selves can be offered, to tell what they saw. And yet each one of these re-
^ The testimonies from various authorities, quoted in this Treatise at § 1367, deserve
re-perusal, by any one who doubts.
xxviii
PREFACE
marks has usually a very subordinate or even negligible testimonial value
in itself. Their recital does not infringe upon the great spirit of the rule.
Practically, the rule is not violated, in ninety-nine such cases out of a hundred.
And in the hundredth, when the recited assertion has a vital testimonial
value, its utterer can be had and is in fact ready and is put upon the stand,
so that the value of his assertion can be duly tested ; and nothing is there
really lost for lack of such testing, and nothing is really gained by excluding
the first witness' recital of it. — Now, the foregoing misguided form of
application of the Hearsay rule marks the daily testimony in hundreds of
trials. One result has been to take away all natural straightforwardness
.from the witness' narration, and to break it up into a series of answers to
bits of questions, framed by inexpert counsel. Another result has been to
multiply tenfold the time and tedium of a trial. A third result has been to
exclude a vast aniount of useful detail of evidential facts. And, finally, a
result has been to bring the Hearsay rule into disrepute, by the abuse of this
its incidental and unessential feature.
What, then, shall we do with the Hearsay rule ?
• 1. Keep it, in its vital feature.
2. In its application to former testimony and depositions, liberalize its
application. An important measure would be to authorize the prosecution
in criminal cases to take depositions, — an authority now lacking in most
States ; the amount of needless hardship inflicted by the detention of witnesses
pending trial must be very great.
3. In its application to extra-judicial assertions, adopt the Massachu-
setts statutory exception for admitting all statements made by persons now
deceased. This is merely a logical extension of the spirit of the rule; for
the rule aims to insist on testing all statements by cross-examination, if
they can he; i.e. if the person has passed beyond the power of the law to
procure him, the test may be dispensed with. No one could defend a rule
which pronounced that all statements thus untested are worthless; for all
historical truth is based on un-cross-examined assertions ; and every day's
experience of life gives denial to such an exaggeration. What the Hearsay
rule implies — and with profound verity — is that all testimonial assertions
cmght to he tested by cross-examination, as the best attainable measure;
and it should not be burdened with the pedantic implication that they must
be rejected as worthless if the test is unavailable.
4. For the same reason, all the Exceptions to the rule, now anywhere
recognized, should be liberalized and enlarged, and adopted where not yet
in force.
Of the specific Exceptions, only one or two need here a comment. (1) The
Dying Declarations exception is by some regarded with distrust. There
seems to be no good reason for this. The distrust seems to be due merely
to an instinctive overworship of the value of exclusionary rules. Let some
judges tell us that they have actually seen several instances of false dying
declarations which have brought an unmerited fate to innocent men ; then
PREFACE
we shall begin to have some reason for hesitation. But there are no signs of
any such scientific examination of the subject. (2) The use of .Official State-
ments, e.g. by certified copies of documents, etc., is burdened unbearably,
in almost all our States, by a preposterous wagon-load of crude and needless
statutes, prescribing detailed rules ; the broad simple rules of the British law
and of a few of our States ought to be substituted. And a broad simple
rule for proof by official certificate should be adopted ; the modern extension
of our administrative system requires some such expedient for proof of
hundreds of facts never really disputed. We are here lumbering along, as
if in our ancestors' stage-coach, without any of the modern conveniences
and expeditious methods. (3) The exception for Statements of a Mental or
Physical Condition is now reaching a state of futile intricacy. This is seen
chiefly in two fields : (a) In personal injury cases, the injured person's state-
ments of pain, etc., are hedged about with a mass of quiddities. The pur-
pose is plain, to avoid letting false claimants impose on juries. The efficacy
of the effort may well be doubted ; there is a risk of such imposition, but the
Hearsay rule is not, and is never going to be, the main means of stopping up
the risk or' of revealing the imposition. Most of the rulings on this subject
give the impression of being merely rulings upon cards played in a game.
(&) In testamentary causes, the testator's statements are governed by a
niunber of fine-spun rules. They are logical enough ; but they let in quite
as much as they exclude of the utterances that are supposed to do harm;
and it may be doubted whether, in an issue so subject as this is to the jury's
uncontrollable sense of justice, the Hearsay exception eyer affected the result
appreciably. Sir George Jessel's way of dealing with this class of evidence
was, after all, as good a way as we can expect to find. (4) The Spontaneous
Exclamations exception offers a large opportunity for liberalization. The
way in which, in personal injury cases, the law here puts on blinders for
this class of evidence, when it comes to investigating the details of the
actual occurrence, would seem farcical, — if we could only stand off at
a distance and look at ourselves. Jury trial, fine as it is, has a good deal
to answer for; but can we censure jury trial here, merely because the
judges have such an exaggerated traditional fear of the jury's emotions
that they, the judges, go daft in shutting out the important facts from
the jury ?
5. The remaining measure needed is to devise some way of permitting
qualified witnesses to narrate an occurrence without the exclusion of the
incidental hearsays. The vice of the present practice is plain enough. But
to frame a measure which will remove it, while keeping the essence of the
Hearsay rule, is not easy.
Title in. Prophylactic Rules. Two of these call for special comment.
1. The Oath. At present, the oath needs reconsideration in three aspects.
a. Although the statutes making the oath optional ought to be re-drafted
on the lines of some of the more advanced types, there should be no abolition
PREFACE
of the oath. For its abolition, indeed, there appears to be no demand.
Observation shows that the oath is still, or may be made, a real force for
veracity with the great multitude of persons.
b. But the administration of the oath is to-day a travesty, a lamentable
failure, — in most courts, at lelast. All its solemn compulsion is eliminated
by the irreverent, disgraceful, and almost blasphemous manner in which it
is administered. Two or three measures, at any rate, would do much to
restore its virtue. (1) It should be administered by the judge, not the
clerk. (2) It should be repeated, word for word, by the witness. (3) It
should be administered anew to each witness, not once only to a group.
And (4) some savor of solemnness should be secured for the occasion, in one
way or another. — All these things can be done by the judge without change
of law. To the judges' indifference, and not to the oath itself, is mainly
due thfe present insignificance of its function.
c. The capacity of children to take the oath is still beridden with limita-
tions which are inappropriate in principle and futile in practice. The ex-
ample of England's statute should be universally followed.
2. Discovery before trial should be enlarged, by clearing away almost all
its present limitations. Here we strike the hidden snag — and a solid one
it is — of professional tradition. The partisan-contentious system of trials
is the largest feature of the Anglo-American system, and is a possession which
we ought not to abandon. Something is said later (p. xxxiv) about this.
But we can afford to part with its abuses. One of them is the gaming ex-
pedient of holding one's cards secret until the play is made.^ Of course the
conservative will urge that to disclose the cards furnishes the unscrupulous
opponent with a means to cheat. This is no doubt a danger. But the
answer is, first, that the danger is probably exaggerated; and, secondly,
that the present conditions are so wrong that the other risk should now be
experimented with ; the presumption at least has now shifted.
What specific measures should be used ? (a) In civil cases, the rule for
documents and party's testimony should be enlarged to include all facts,
whether bearing on the applicant's own case or not. (b) The rule for wit-
nesses' testimony should be made to go equally far. (c) In Federal courts,
discovery in all the foregoing features should be introduced; the Supreme
Court having shown a lamentably reactionary attitude on this subject.
(d) In all courts and all classes of cases, the rule should be extended to include
discovery of premises and chattels, (e) In criminal cases, the defence should
make discovery of its witnesses, equally with the prosecution.
But none of these mere rules will help much until the sporting theory
ceases to dominate in counsel's motives.
Title IV. Simplificative Rules. In this field, two rules mainly need
attention.
> Mr. Sherman Whipple, of Boston, has lately published vigorous denunciations of
the present method.
xxjd
PREFACE
1. The rules for order of presenting evidence are in general sound; they
are apparently better (for us) than the Continental rules. But one of thena
is wholly bad, viz. the rule against putting in one's own case on cross-examina-
tion. Besides the general demerit which experience has shown in this rule,
it has the peculiar fatality that it is the rule which apparently the crudest
practitioner first learns and most obstreperously invokes, like a little terrier
with a rat. And the judges seem to elevate it to the dignity of an Eleventh
Commandment. Moreover, this rule combines with others to make some
particularly obnoxious results. It must be abandoned absolutely.
2. The opinion rule. Words fail one to express the nauseous excesses of
this rule and the senseless harm done by it. The depths of its present
inanity, as a rule of Evidence for sensible men, are recorded in the annals
of every trial. Of course, if one cannot see this, there is an end of the
matter. But those who cannot see it should at least endeavor to question
their own faith in the doctrine.
But how to get rid of it, is not so simple a matter to settle. It is insid-
iously mingled with two other rules almost inextricably.
(o) The rule for expert qualifications requires that on a topic requiring
special experience the witness must be shown to possess that special experi-
ence. This rule is, of course, to be kept. But what does the expert then
give, as his testimony? It is commonly termed his "opinion." But this
" opinion " is not what the so-called Opinion rule excludes or lets in. Hence,
to abolish the Opinion rule does not affect the above rule, i.e. the rule that
a witness who is not qualified by special experience, when needed, cannot
testify on that subject.
(6) The rule for a witness' knowledge by personal observation (already dis-
cussed, p. xxiv) excludes his " opinion " in so far as such an " opinion " may
imply merely an impression based on hearsay and not personal observation.
Hence, to abolish the Opinion rule would not mean abolishing this rule.
^For example, a witness to an affray, who merely heard the accused utter a
threat the day before and testifies to it, should not be allowed to answer,
"In your opinion, is the defendant guilty?" But he should be allowed
(the Opinion rule being abolished, i.e. the rule prohibiting inferences from
observed data), to be asked, " In your opinion, was the defendant in earnest
when he uttered that threat? "
(c) The hypothetical question, which figures as one of the overworked tech-
nicalities of present practice, is not a result of the Opinion rule, but of the
above rule (6). Hence, to abolish the Opinion rule does not mend this part
of the situation. Medical men who have experience of the witness-stand
resent with irritation the hypothetical question. Yet the necessity for it is
unavoidable ; and the medical man's disapproval of it merely shows how
distinct are the conditions of a jury trial and a medical prescription. But
what can be done to remedy the abuses of the hypothetical question ? Several
minor measures would assist ; but to explain them would here take too much
space.
xxxii
PREFACE
In sum, what specific measure would eliminate the Opinion rule, while
preserving the other rules that ought to be preserved ? Something like the
following would perhaps serve ; note that any such measure must contain
within itself certain educative (as it were) phrases, which would point out
how much was removed and how much preserved :
" An inference or opinion may always be stated by a witness ; irrespec-
tive of whether
" (a) the data upon which the opinion is based are or are not capable of
being so stated by him in words that the tribunal is equally capable of draw-
ing the inference ; or whether
" (b) the data are or are not stated by him before stating his inference ;
or whether
" (c) the inference involves the very subject of the issue, or one of the
issues, before the tribunal ;
" Provided that the trial judge may in his discretion exclude testimony
involving an opinion or inference, .
" (1) Whenever the topic is one which requires special experience for draw-
ing the inference, and the witness is in the judge's estimation not so qualified ;
or
" (2) Whenever the witness has not had adequate personal observation of
any data from which such inference might be drawn ; and
" (3) Except that in the latter case the judge may permit the inference to
be stated if the data are stated hypothetically to the witness and if he is ,
qualified by experience to draw inferences on the subject."
However, if the present tangle cannot be successfully abated by the above
or some similar rule, then we need not hesitate to cut at the root and to
abolish the bad and the good together. Nothing here could be worse than
the present state of things.
Among the special applications of the Opinion rule, two or three may here
be noted. The rule against an opinion as to safety, care, reasonableness,
etc., is one of the most obstructive, and could easily be cut out, by itself.
The rule against an opinion to character is one of the most obvious viola-
tions of common-sense, — an aberration, too, from historic tradition ; it
can be set right without attempting to solve, the rest of the problem. The
rule about handwriting testimony is mingled with other rules, but can also
be set right without attempting the whole problem; the English statute,
already adopted in a few States, makes a good rule-of -thumb.
Title V. Quantitative Rules. Here the several rules call for distinct treat-
ment.
1. The rules as to required numbers and hinds of witnesses are in theory
unsound. When our judges resume their rightful control of trials, and
when the judge's charge on the evidence is restored, we can afford to get
along without most of these rules. Nevertheless, in the meantime, their
vagaries do relatively little harm. Regarded as cautions of experience for
PREFACE
judge and jury, they are (virtually all) wise and useful. Regarded as rules
of the ritual, to be literally recited by the trial judge and technically enforced
by the appellate Court, they degenerate into futilities. A few of them have
crystallized into needless details. A few of them are a favorite theme of
quibbling for some Courts. But on the whole, there is no fault to be found
with their general wisdom.
2. The rule for iierbal completeness is a sound rule, needing only that general
liberalization of administration which all our rules need.
3. (The rules for authentication of documents represent one of the most
vital and creditable features of our law. Probably no other single rule,
except the Hearsay rule, is so useful a safeguard against the frailties of human
credulity. Experiments conducted over some years ^ have shown that
jurors of the most intelligent class need these safeguards. Here, as else-
where, a more liberal administration is needed. The chief application need-
ing definite improvement of rule is the exception for authentication by
ofiicial seal ; hundreds of useless statutes cover this with needless and variant
details ; a simple statute of the English type should replace them.
Part III. Rules of Extrinsic Policy. This is one of the fertile places for
misguided growths in the law of Evidence. Judges consider too little that
this group of rules frankly aims at no purpose of reaching truth in trials,
but deliberately stifles truth; and does so by setting up some other policy,
over against the search for truth, as more needful and deserving of protec-
tion, for the time being, at the expense of truth. If judges thought oftener
of this, they would oftener ask themselves whether this other policy really
is more needful and deserving of protection, and whether the rule does really
give enough such protection as to be worth while. Some such reflection
would have avoided most of the excesses now noticeable in the details of
these rules.
^itle I. Rules of Absolute Exclusion. Here only one rule has found even a
partial lodgment, and in a few Courts only ; but there is a disposition there to
give it undue homage. The remarks at § 2183 of this volume will here suffice.
Title II. Rules of Privilege. Here may be seen excesses, all along the line ;
and yet all but one or two of the privileges are sound at the core.
1. Sundry privileged topics. We are fortunate in being burdened with
few of these. The ancient one for the party-opponent in civil cases has now
gone by the board ; except that it remains, in most jurisdictions, in its appli-
cation to the party's chattels and premises, and in a few jurisdictions, in its
application to the party's person. It ought to be completely eliminated.
It is merely another feature of the sporting theory of justice.
2. The privilege for anti-marital facts has gone in some States, in civil
cases ; most States, and England, retain it for criminal cases. Its retention
is a piece of comprehensible but quite misplaced sentimentality.
* In the writer's classes.
xxxiv
PREFACE
3. The privilege for self-criminaiing facts is at last brought to the bar to
defend itself, for the first time in more than two centuries. Positive signs;
of unfaith in it are visible, even in our own profession. But we hope that it
will be acqiiitted, or at least placed on probation and given a warning to re-
form. It has for a long time been conducting itself as an undesirable citizen^
and the only question is whether the community does not need its talents, in
spite of its past misuse of them. The significant fact that a congregation of
lawyers and criminalists in Wisconsin has deliberately proposed to remove the
constitutional aegis which protects it should at least force a full and frank con-
sideration of its case by enlightened professional opinion. But we have seen
no reason to alter the views expressed on its behalf in § 2291 of this Treatise. —
The possible details of reformatory measures would here take too much space.
4. The privilege for communications between attorney and client plays only
a small part in the decisions, although of course it excludes a vast mass of
evidence. Over against some recent arguments for its abolition,^ we still
believe in the adequacy of the arguments for its retention (set forth in § 2291
of this Treatise).
5. The privilege for marital communications is less strongly defensible.
And yet its obstruction to evidence is comparatively little. What it needs
is some flexibility ; the trial Court should here have liberty of discretion to
make exceptions. But also it needs to be treated as a mere privilege, i.e.
optional when claimed by the spouse. Most Courts erroneously treat it as
an absolute rule of exclusion.
6. Jurors' communications belong really under the Parol Evidence rule,
applied to the solidity of verdicts, and need not be here considered.
7. The privilege for official secrets makes relatively little obstruction ; but
it contains the germs of a vicious growth. It has only two or three legiti-
mate applications ; and it should be watched, to prevent its spread to noxious
possibilities.
8. The privilege for communications between physician and patient is sound
enough for an occasional and narrow application; but its illogical and in-
discriminate extension has made it one of the most farcical measures of
needless obstruction. In three principal classes of cases — will cases, insur-
ance cases, and personal injury cases — it is to-day nothing but a powerful
joker in a pack of cards, to be slapped triumphantly on the table whenever
the game is going against one. Some judges in appellate Courts treat it
.with a respect which is simply incomprehensible. That any sensible system
of trials should so long retain in its law so discreditable a rule of evidence
will some day be difficult to believe.
Book II. By whom Evidence must be Presented. Two general topics
here deserve attention; 1, the contentious system in general; 2, the burden
of proof between the parties, and the specific presumptions.
1 Mr. Sherman L. Whipple, of Boston, in addresses before the Connecticut and the
Florida Bar Associations.
XXXV
PREFACE
1. The Contentious System, in general. A good deal has been heard, of
late, against our " contentious " system of trial procedure.^ The word
carries with it a derogatory argument. But we must distinguish, of course,
between general " contentiousness," which is a fault of behavior, and " con-
tentious procedure," which merely denotes the scientific fact that our system
relies upon the parties, not the judge, to search for evidence and to present it,
each in rivalry with the other. The former may be merely a remediable
abuse, separable from the system itself ; the latter may be a sound principle.
And in inquiring whether the procedural principle be sound, we must
remember that it is a characteristic and historic feature of our system. It
stands in emphatic contrast to the Continental system. Nothing is more
interesting than the history of the rise and development of the inquisitorial
system,^ which now dominates on the Continent. The examining judge
and the trial judge, in that system, seek before trial, and adduce at the trial,
the bulk of the evidence ; ^ and the parties' counsel, in this part of the liti-
gation, act mainly as vigilant guardians. That system, too, has had its
excesses, — and the very name "inquisitorial " carries in our language a derog-
atory flavor, due to those long past excesses. So that the ultimate question
is not whether our system exhibits abuses ; but whether our system, without
its abuses, is better for us than would be the other system, without its abuses.
The world has had plenty of experience with both systems, and the in-
quiry is at least open. Here it is desired merely to point out that the prob-
lem is an historic one of contrasting systems, and that to change our system
is a much more radical thing than to remove the abuses.
Our system indeed will have a good deal to say for itself, when the time
comes. It is intrinsically quite as efficacious as the other to " beat and
boult out the truth " (in Sir Matthew Hale's quaint phrase). It is much
better suited to the traditions of our bar and to the temper of our people.
It is much better suited to the spirit and training of our judiciary. Indeed,
any other system, for us, is inconceivable, until times and manners change
radically.
But, obviously, our system has been hard ridden. Its abuses of adminis-
tration are multiple. Here, however, we are concerned only with rules of
law. And the one notable improvement needed is that judges should re-
member that they possess the laioful power to summon witnesses and to
extract testimony.^
In both these aspects there is noticeable, of late, a dangerous tendency
to forget the dignified and potent traditions of our law.
' Mr. Whipple, of Boston, in the addresses already cited; Mr. Herbert Harley, of
Chicago, in Bulletins of the American Judicature Society ; Mr. R. S. Gray, of San Francisco
and Mr. Abram Adelman, of Chicago, in the Journal of Criminal Law and Criminology,
V, 654, 663 ; Mr. Wesley W. Hyde, of Grand Rapids, in the Illinois Law Review,YIlI, 239.
2 Esmein's "History of Continental Criminal Procedure," passim (Continental Legal
History Series, 1914) .
' Subject to modern modifications, especially in civil cases.
* § 2484 in this Treatise.
xxxvi
PREFACE
(1) That the trial judge has the power to select and summon and place on
the stand a witness not called by the parties, has never ceased to be our law,
although the practice is now with us rare. But that a modern court could
go so far (post, § 2484) as to hold that a statute applying this power in a cer-
tain class of cases is unconstitutional, would have been incredible, if it had
not come to pass. One decision in one State does not bulk large. But in
its revelation of the possibilities of contemporary appellate aberration it is
an enormity. Practice and custom have already gone far in reducing our
trial judges to the position of mere umpires; but for the judiciary to con-
firm this result irremediably by invoking the Constitution, thus to seal their
own abdication of inherent and essential powers, is an event of disquieting
omen.
(2) That the trial judge has the power to elicit evidence by questions to a
witness, has also never (apparently) been doubted in law. ^ But in practice
our appellate Courts are constantly rebulcing our trial Courts for putting
such questions. The ostensible ground for this is the infringement of the
(bad and unhistoric) statutory rule against the judge's expression of an
opinion on the weight of evidence. But this enforcement of the latter rule
would never have been carried so far if the appellate Courts had been pos-
sessed of a proper respect for the trial judge's power to elicit evidence. The
appellate Courts would have seen to it that this power duly held its own
against the encroachments of the other rule.
So that in this field there is much lost ground to be regained. The means,
however, must be more a change of appellate temper than a change of rule.
2. The Burden of Proof between the Parties. So far as theory goes, the
old confusion here reigning promises soon to be dissipated. The enlighten-
ing influence of Professor Thayer's writings can be seen breaking through
in many quarters of the judicial heavens. An improvement of terminology
would ultimately be indispensable. But we could be satisfied to see the
general enlightenment impending.
Nevertheless, in practice, the specific rules for burden of proof make upon
us the impression of vain logical verbalities, — on the whole. They are,
inherently, artificial methods of controlling the mind's operations. And
when applied by a judge in a form of words which the jury is supposed to
put to use in the privacy of its chamber, they are unlikely to have the sup-
posed effect, — or indeed any effect, when they are more than the simplest
rules of thumb. Comparing Jthe amount of judicial thought expended upon
them, they are probably the least worth while part of the rules of evidence.
And yet they have a necessary place, and they are intrinsically sound
enough. What to do with them, is a hard question. But it would be in-
teresting to test them empirically, i.e. by asking one hundred trial judges
whether they have ever observed that these rules had their designed effect
upon the jurymen's decisions.
' § 784 in this Treatise,
xxxvii
PREFACE
The foregoing dubitative remarks do not apply to these rules as rules for
the judge, i.e. in so far as the judge rules as matter of law, e.g. against a
plaintiff for insufficient evidence, etc. Here there seems no reason to doubt
the excellence and efficacy of the present system. No doubt the same general
need of liberalization is found in this field as elsewhere.
Book III. To whom Evidence must be Presented. Here the main place
for improvement is the statutory rule against the judge's charge on the evi-
dence. Enough has already been said as to this bad feature of our modern
procedure (ante, p. xxi). But much more will have to be said, in many
quarters, before our profession can be awakened from their delusion in its
favor, and induced to abandon it.
Book IV. Of what Facts no Evidence need be Presented. Judicial Notice
and Judicial Admissions are the two titles of rules under this head. Both
of them are beneficent devices, and the prime need is that they shall be
expanded in rule and used oftener in practice. Something is said elsewhere
to illustrate this {post, §§ 2583, 2597). The newly-minded judiciary, when
it develops, will find these to be two of the most useful tools in our system.
In closing this critique of our present system, let the following serve as
suggestions collateral to the whole of it :
1. General denunciations against the system, and general denunciations
against denunciations, will do little service either way. A great national
and racial system cannot be easily set aside ; and its historic growth indicates
that it has at least some right to exist, as it is and where it is. What is
needed rather is detailed study and concrete criticism. The specffic rules
must be tested, in their original purpose, their workings, their fitness to
siu-vive under present conditions. Complete and long-continued discussion,
by men of varied experience, along the lines here sketched in this Preface,
would ultimately bring an intelligent consensus as to the parts to be pre-
served or emphasized and the parts to be modified or cast off.
2. In any proposals of improvement, the proposer must sooner or later
come down to a draft of words. And until he has tried to frame the words
for his proposal, he cannot be sure that he has himself grasped it either in its
extent or in its practicability. To see poor results around us, and to assume
publicly the attitude of reform, may signify both intelligence and courage.
But it does not signify what is to be the tenor of the proposed reform. And
until that tenor is revealed, we cannot say whether it is either desirable or
feasible. All who have had experience with proposed legislation are aware
of this. And their experience has taught them that there is often a large
and sometimes impassable chasm between the abstract idea of a reform and
the concrete words which must enact it. — These comments are offered to
those who have in mind the reform of any substantial part of our system of
Evidence.
3. No reform of rules of Evidence will ever of itself, i.e. as an improved
PREFACE
rule of law, accomplish much in promoting actual justice. It may remove
an intellectual error from our records. And it may of its own force effect
some good for some time. But on the whole its effect must depend upon
its surrounding conditions and their coincident advancement. The adminis-
tration of justice, being a human affair, is not very unlike the human body.
The perfect operation of any one organ is dependent more or less oij the
general conditions of the rest of the body. And the system of Evidence is
dependent upon procedure in general, upon the organization of courts, upon
the personnel of the judiciary and of the bar, upon the human nature of
witnesses, and upon the temper of the community in wanting and support-
ing a high and intelligent standard of justice.
Let us therefore expect that the system of Evidence, on the whole, will
most readily improve when the men who administer it also improve and the
system of justice as a whole advances. Sound rules of Evidence, in short,
are as much a symptom as a cause of better Justice.
J. H. W.
NOBTHWESTBRN UNIVERSITY LAW ScHOOL,
Chicago,
March 4, 1915.
XXXIX
CONTENTS
Page
PbefAce V
List of Latest Statutes and Eepokts consulted .... xliii
Supplementary Citations of Statutes and Judicial Decisions
(1904-1915) 1
Table of Statutes cited 683
Table of Cases cited 707
Consolidated Index to the Original Treatise and this Supple-
ment, BY Harvey C. Voorhees 789
xli
LIST OF LATEST REPORTS AND STATUTES CONSULTED
I. Statutes
The titles and dates of the compilations of statutes referred to in this Supple-
ment, and the years of the latest session laws consulted in its preparation,
are shown in the table below. In several jurisdictions new official revised compila-
tions have been made during the period covered by this Supplement, but the usual
(and culpable) lack of a table of cross-references in the new revisions to the former
numbering has made it impracticable in this work to use them ; for North Carolina,
however (where a perfect table is published), the citations to the revisions of 1905
were added in the first Edition.
In the following Table are shown, for convfenienee of reference, the dates of both the
latest statutes consulted for this Supplement and of those consulted for the original
work :
Date of Latest Session Laws
Examined
JUBIBDICTION
Title and Date of Compilation Used
For the Origi-
For this Sup-
nal Work
plement
England
1903
1913
Canada :
Dominion ....
Revised Statutes 1886
1902
1914
1913
British Columbia . .
Revised Statutes 1897
1903
1914
Manitoba ....
Revised Statutes 1902
1903
1913
New Brunswick . .
Consolidated Statutes 1877
1903
1914
Newfoundland . . .
Consolidated Statutes 1892
1903
1914
Northwest Territories >
Consolidated Ordinances 1898 . .
1903
1904
Nova Scotia . . .
Revised Statutes 1900
1903
1914
Ontario
Revised Statutes 1897
1903
1914
Prince Edward Island
1902
1913
1913
Yukon
Consolidated Ordinances 1902 ....
1913
United States :
Code 1897
1901
1911
AUiska
Carter's Laws of Alaska 1900 (U. S. St.
1900, March 3 and June 6) ....
1903
1913
Arizona
Revised Statutes 1887 ; Penal Code 1887
1903
1913
Arkansas ....
Sandels and Hill's Digest of Statutes 1894
1903
1913
California ....
Codes 1872 ; Deering's Supplements 1889,
Pomeroy's edition of 1901
1902
1913
Colorado ....
Mills, Annotated Statutes 1891^ Supple-
ment 1896, and Code of Civil Proced-
ure 1896
1902
1913
Columbia (District) .
Abert and Lovejoy'a Compiled Statutes
1894 ; Code 1901 (U. S. St. 1901, c. 854)
1903
1913
Connecticut . . .
General Statutes 1887
1903
1913
Delaware ....
Revised Statutes 1893
1903
1913
' The legislation for this region is continued, since 1902 and 1904, in the newly organized
Provinces of Alberta, Saskatchewan, and Yukon.
' 'The Legislature meets regularly in Alabama every fourth year only.
xliii
LIST OF LATEST REPORTS AND STATUTES CONSULTED
JtJRIBDIGTION
Title and Date op Compilation Used
Date of Latest Ses-
sion Laws Examiniejd
For the
Original
Work
For this Sup-
plement
United States
Florida .
Georgia .
Hawaii .
Idaho
Illinois .
Indiana
Iowa
Kansas '
Kentucky
Louisiana
Maine . . .
Maryland . .
Massachusetts
Michigan . .
Minnesota . .
Missouri .
Montana . .
Nebraska . .
Nevada . . .
New Hampshire
New Jersey
New Mexico .
New York . .
North Carolina
North Dakota
Ohio . .
Oklahoma .
Oregon . .
Pennsylvania
Rhode Island
South Carolina
South Dakota .
Tennessee .
Texas . .
United States
Utah . .
Vermont
Virginia
Washington
West Virginia
Wisconsin .
Wyoming .
Revised Statutes 1892
Code 1895 ; Van Epps' Supplement 1900 . . . .
Penal laws 1897 ; Revised Civil Laws 1897 . . .
Revised Statutes 1887 ; Constitution 1899 . . .
Revised Statutes 1874, Hurd's edition of 1898 . .
Thornton's Revised Statutes 1897
MeClain's Annotated Code 1897
Webb's General Statutes 1897
Carroll's Statutes 1899, and Codes of Civil and
Criminal Procedure 1895, edition of 1900 . . .
Saunders' Revised Civil Code 1888; Garland's Re-
vised Code of Practice 1894 and Supplement
1900 ; Wolff's Revised Laws 1897 ; Constitution
1898
Public Statutes 1883, Supplement 1895 . . . .
Poe's Public General Laws 1888 ; Supplement 1900
Public Statutes 1882 ; Revised Laws 1902 . . .
Miller's Compiled Laws 1897
Wenzell, Lane, and Tiffany's General Statutes 1894
Thompson, Dillard, and Campbell's Annotated Code
1892
Revised Statutes 1899
Sanders' Codes sind Statutes 1895
Brown and Wheeler's Compiled Statutes 1899
Baily and Hammond's General Statutes 1885 . .
Public Statutes 1891
General Statutes 1896 . . •.
Compiled Laws 1897 ...
Birdseye's Revised Statutes 1896 . ...
Code 1883 ; Long and Lawrence's Amendments 1897
Revised Codes 1895 ...
Bates' Annotated Revised Statutes 1898 ....
Statutes 1893
Hill's Codes and General Laws 1892
Pepper and Lewis' Digest 1896
General Laws 1896 "
Revised Statutes 1893 ; Code 1902 '.
Grantham's Statutes 1899
Shannon's Annotated Code 1896
Revised Civil Statutes 1895; Penal Code 1895;
Code of Criminal Procedure 1895
Revised Statutes 1878, Supplements 1891, 1895 .
Revised Statutes 1898
Statutes 1894 '
Code 1897, Supplement 1898
Ballinger's Annotated Codes and Statutes 1897 . .
Code 1891, third edition
Sanborn and Berryman's Statutes 1898 ....
Revised Statutes 1887
1903
1903
1901
1903
1903
1903
1902
1903
1902
1902
1903
1902
1903
1903
1903
1902
1903
1903
1903
1903
1903
1903
1903
1903
1903
1903
1902
1903
1903
1903
1903
1903
1903
1903
1903
1903
1903
1902
1903
1903
1903
1903
1903
1913
1914
1913
1913
1913
1913
1913
1913
1914
1912
1913
1914
1914
1913
1913
1914
1913
1913
1913
1913
1913
1913
1913
1914
1913
1913
1914
1913
1913
1913
1913
1914
1913
1913
1913
1913*
1913
1912
1914
1913
1913
1913
1913
' For the judicial status of this compilation, see State v. Carter, 74 Kan. 156, 86 Pac. 138 (1906)
* Sixty-third Congress, first Session.
No citations have been given for the "Proposed Bill to Codify Revise and Amend
the Laws relating to the Judiciary," being part of the Report (dated April 13, 1914) to
accompany H. R. 15578 of the Committee on Revision of the Laws (63d Congress, 2d
sess., H. Rep. 521, parts 1 and 2). The sections affecting the rules of evidence 'are
changed in only a few slight respects in this draft ; the numberings will be different.
xliv
LIST OF LATEST REPORTS AND STATUTES CONSULTED
II. Reports op Decisions
The printing of this Supplement began in November, 1914, and ooeupied four
months ; it was therefore desirable to set a definite point of time for the ending of cita-
tions (instead of inserting current late cases in the latter portions of the book only),
in order that those who use the book may know where to begin in bringing the later
citations down to the date of their consultation. The point taken was therefore that
volume of the different National Reporters which ended nearest to July 1, 1914; this
ranged (dating by the weekly issues) between May, 1914 and September, 1914. Sub-
stantially, then, the citations come down to the beginning of August, 1914. The latest
volumes of Reports consulted were as follows :
JCBISDICTION OF LaTBBT ReFOBTS EXAMINED
Fob the :
Obiginal
WOBK
Fob this
Supplement
National Reporter System:
Official Reports (not cov-
ered by the National Re-
porter System) :
British Reports :
Atlantic Reporter ....
Federal Reporter
Northeastern Reporter . . .
Northwestern Reporter . .
Pacific Reporter
Southern Reporter ....
Southeastern Reporter . . .
Southwestern Reporter . . .
Supreme Court Reporter . .
District of Columbia Appeals
Hawaiian Reports . . . .
England :
Law Reports . . . .
Cox's Criminal Cases . .
Criminal Appeals . . .
Ireland : Law Reports . . .
Canada :
Dominion Supreme Court
Alberta
British Columbia . . .
Manitoba
New Brunswick . . . .
Newfoundland . . . .
Northwest Territories ' .
Nova Scotia
Ontario : Law Reports
Prince Edward Island
Saskatchewan . . . .
Yukon
Dominion Law Reports * .
Vol.
55
125
68
96
73
35
45
76
23
21
13
1903
18
32
10, pt.
12
34
5
5, pt.
35
5
2
Vol.
8
212
105 >
146
140
64
80
166
34
41
21
1913 2
20
1-9
1894-1913
1-14
1 With a few cases from vol. 106. ' And also the K. B. Division for 1914, vol. 1.
' Now replaced by Alberta, Saskatchewan, and Yukon.
< These Reports cover all Canadian Appellate Courts. They begin in 1912, and for decisions
since that date have been consulted instead of the separate series for the respective Canadian
jurisdictions.
The reports of the Appellate (intermediate) Courts in California, Colorado, Georgia,
Illinois, Indiana, Kansas, New York (Supreme Court), and Texas have not been cited,
except on interesting matters for which there is scanty authority ; partly because their
ruUngs are not final, and partly because in some jurisdictions they are expressly made
not binding as precedents. The trial rulings of Federal District and Circuit Courts
have also been left unnoticed to a similar extent.
III. Citation op this TeeatIse
Citations of other parts of this treatise are made herein by number of section (§) and
number of note. The notes are numbered continuously within each section.
xlv
EVIDENCE
IN
TRIALS AT COMMON LAW
SUPPLEMENTARY VOLUME — SECOND EDITION
§ 4. Distinction between Ex parte and Responsory Proceedings.
[Note 6; add:]
1906, Goodwin v. Blanchard, 73 N. H. 550, 64 Atl. 22 (the trial judge has discretion to
refuse oral examination of jurors who have made affidavits, on a motion for a new trial).
Contra: 1906, Kippu Clinger, 97 Minn. 135, 106 N. W. 108 (affidavit on motion to open a
judgment; rule of personal knowledge applied).
§ 5. Conflict of Laws, in general.
[Note 1 ; add, at the end :]
It should be added that the lex loci acti, or law of the place of the act to be proved, has been
proposed as the rule, by the Institute of International Law (Annuaire de I'lnstitut, 1878,
pp. 44, 50), at least as regards admissibility and weight. But this solution seems both
unsound and unpractical. It finds favor in France and Italy, as well as in South America ;
but it is not accepted in Germany nor in the majority of countries of Continental Europe
(Weiss, Traite de droit international priv6. Tome V, 1905, p. 475, and references). More-
over, this French rule has been forcibly dissented from by Professor de Vareilles-Som-
miferes, of Lille (Clunet, Journal du droit int. privg, 1900, XXVII, 258, 287). The rule for
conflict of laws ^ to the form of acts, i. e. whether a legal transaction must be in writing,
etc., was made a part of the programme for the first Hague Conference on Private Inter-
national Law in 1893, but was apparently not regulated by any of the enactments of that
body in any of its conferences hitherto (Actes de la Confgrence, etc., 1893, p. 18; Con-
ference of 1904, p. 205). A list of articles on the subject may be found in the Tables Ge-
nerales to Clunet's Journal du droit int. privg, vol. I, p. 770.
[Note 2; add, under Accord:]
1906, Re Wogan, 103 Mo. App. 146, 77 S. W. 490 (a deposition taken in Missouri for use in
a trial in Oklahoma; the latter's law as to notice, held to apply).
1907, Malcolm Sav. Bank v. Cronin, 80 Nebr. 228, 114 N. W. 158 (affidavit taken in Iowa
but illegally under Nebraska law, excluded).
1905, Supreme Lodge v. Meyer, 198 U. S. 508, 25 Sup. 754 (New York insurance contract).
1905, Doll V. Equitable Life Ass. Soc'y, 138 Fed. 705, 710, C. C. A. (the New York rule as to
a physician's privilege, held not applicable in a trial in the Federal court in New Jersey,,
though the parties' contract made the law of New York the rule of the contract ; "the law
of the forum, and not of the place of the contract, must govern").
1
§5 CONFLICT OF LAWS
[Note 3; add, uadeT Contra:] k
1906, Kaufman v. Barbour, 98 Minn. 158, 107 N. W. 1128 (agreement between makers of a
Missouri note that some should be sureties only ; Minnesota law applied).
[Note 3 ; add, at the end :]
A careful opinion on the rule applicable to the interpretation of a will by a testator domiciled
abroad but devising lands in the forum is the following :
1907, Peet v. Peat, 229 111. 341, 82 N. E. 376.
§ 6. Conflict of Laws ; Federal and State Jurisdictions in the United States
and Canada.
[Note 2; add:]
U. S. Rev. St, 1878, § 862 ("The mode of proof in causes of equity and of admiralty and mari-
time jurisdiction shall be according to rules now or hereafter prescribed by the Supreme
Court, except as herein specially provided ")■
[Text, line 3 ; after " State rules," add a new note 4a :]
1913, The Titanic, D. C. S. D. New York, 206 Fed. 500 (in admiralty under Rule 6 of the
District Court of Jan. 6, 1912 supplanting old Rule 119, and under U. S. Rev. St. 1878,
§§ 913, 918, and Rule 46, U. S. S. C, a deposition by commission in perpetuam memoriam
may be on oral interrogatories conforming to New York practice, in spite of U. S. Rev. St.
1878, § 866, providing that it shall be taken according to "common usage"). ,
[Note 5; add':]
1904, Balliet v. U. S., 129 Fed. 510, 515, 16 Sup. 62 (the Iowa statute for indorsing witnesses ;
whether it obtained in place of the Federal statute, post, § 1851, not decided).
1903, Hanks Dental Ass'n v. Tooth Crown Co., 194 U. S. 303, 24 Sup. 700 (refusing to apply
N. Y. C. C. P. § 870, as to discovery before trial).
1906, Smith v. Au Gres Tp., 80 C. C. A. 145, 150 Fed. 257, 260"(U. S. Rev. St. § 858, as to
survivor's disqualification, held to supersede the Michigan statute).
1907, Miller v. Steele, 6th C. C. A., 153 Fed. 714, 720 (Rev. St. § 858 held exclusive as to the
disqualification of a survivor in a transaction with a deceased person).
1907, Smith v. International Mercantile Co., C. C. N. J., 154 Fed. 786 (following Hanks
Dental Ass'n v. Tooth Crown Co., as to N. J. Pub. L. 1903, § 140, p. 537).
On the question of depositions imder Federal statutes, compare the citations post, §§ 1381,
n. 3, 1856, n. 10.
[Note 6; add:]
1905^ Toledo Traction Co. v. Cameron, 137 Fed. 48, 66, C. C. A. (U. S. R«v. St. 1878, § 861
and Ohio Annot. Rev. St. 1898, § 5242o, relating to the use of testimony at a former trial
held not to be in conflict, and the latter followed).
[Note 7, 1. 6 from below; add:]
1904, Manhattan L. Ins. Co. v. Albro, 127 Fed. 281, 284, C. C. A. (adopting the Massa-
chusetts Court's interpretation of a "Massachusetts statute as to parol evidence).
[Note 8; add:]
1909, Chicago & N. W. R. Co. ». Kendall, 8th C. C. A., 167 Fed. 62 (personal injury; the
plaintiff showed his knees to the jury voluntarily, on cross-examination and at a juror's sugges-
tion ; the defendant then asked him to submit it to medical inspection, but he refused, and the
trial Court declined to order it, on the ground that the trial was in Iowa, that the Iowa law
2
CONFLICT OF LAWS §6
[Note 8 — continued]
empowering inspection was declared by common law judicial decision and not by statute,,
and that U. S. R. S. §§ 721, 858 did not empower the Federal Court to apply a State com-
mon-law rule ; reversed, on the ground (1) unanimously held, that the plaintiff by showing his;
knee waived the privilege as to further inspection by medical men; (2) per Sanborn, J.,,
that U. S. R. S. § 721 empowered the Federal Court to follow any State rule however
declared ; but (3) per Amidon, J., that the trial Court ruled correctly if the rule involved
were a rule of evidence).
{Noted; add:]
1904, Lang v. U. S., 133 Fed. 201, C. C. A. (cross-examination to the witness' record of con-
viction, allowed, contrary to the Illinois rule ; no authority cited).
[NoteW; add:]
1904, Withaup v. U. S., 127 Fed. 530, 533, C. C. A. (following Logan v. U. S. ; the common-
law rule, and not the Colorado statute of 1893, as to comparison of handwriting, applied,
because "the common law, by reason of the territorial act of 1861, was the law of Colorado
when it was admitted into the Union as a State").
1913, Maxey v. U. S., 8th C. C. A., 207 Fed. 327 (conviction of crime ;' the common law rule
applied to a trial held in Arkansas).
Thus, the rule for discovery of witnesses by the prosecution to the defendant, is the Fed-
eral statute, not the State statute :
1908, Jones v. U. S., 9th C. C. A., 162 Fed. 417 (collecting prior rulings).
[Text, 1. 4 on p. 19 ; add a new paragraph (d), and new note 10a :]
(d) In all civil actions, the foregoing distinctions are now subject to be
modified by the statute of 1906, which applies uniformly the lex fori terri-
torialis}"^ Just how far this statute will be construed to overthrow the
hitherto settled distinctions, and how far § 721 of the Revised Statutes can
be harmonized with it, remains to be seen. In the pending Revision, now
in the hands of a Committee of Congress, these unavoidable problems should
be solved in advance, if possible.
"" St. 1906, June 29, § 3608, Stat. L. vol. 34, p. 618 (U. S. Rev. St. 1878, § 858, is amended
so as to read as follows : "The competency of a witness to testify in any civil action, suit, or
proceeding in the courts of the United States shall be determined by the laws of the State
or Territory in which the court is held").
1913, In re Felts, Iowa N. D., 205 Fed. 983 (whether § 27a of the U. S. Bankruptcy Act
prevails over the Iowa Code, as to a wife's privilege, not decided).
[Note 11 ; add, at the end :]
A similar conflict, however, may arise in regard to the Federal executive regulation forbid-
ding disclosure of liquor-tax receipts by revenue collectors; this rule of privilege has been
recognized by the Federal Courts ; but if the State Courts do not recognize such a privilege
in their own law, there is no reason why they should not compel disclosure from a Federal
official within their jurisdiction ; the practice may be seen from the citations, post, § 2375.
[Note 14, at the end, oM:]
But the following case seems contra: 1903, Cockerill v. Harrison, 14 Man. 366 (Eng. St.
1869, 32 & 33 Vict. c. 68, § 2, quoted post, § 2061, relating to actions for breach of promise,
held applicable to Manitoba, and not impliedly repealed by Manitoba Evidence Act, 57
Vict. c. 11).
3
§6 CONSTITUTIONAL RULES
[Note 15; add:]
By Ont. Rev. St. 1897, c. IH, § 1, St. 1910, 10 Edw. VII, c. 45, § 2 (" all matters relative
to testimony and legal proof in the investigation of fact and the forms thereof in the Courts
of Ontario shall be Regulated by the rules of evidence estabUshed in England on Oct. 15,
1792" except so far as altered by Imperial, Dominion, or Ontario statute).
[Note^l; add:]
1904, Attorney-General v. Toronto J. R. Club, 7 Ont. L. R. 248 (Can. St. 1893, c 31, quoted
post, § 2252, relating to the privilege against self-crimination, held not applicable in
Ontario, upon claim of privilege by a witness in a civil proceeding for revoking a corporate
charter).
1906, Chambers v. Jaffray, 12 Ont. L. R. 377 (claim of privilege on a civil trial ; the trial
judge treated Can. St. 1893, c. 31, supra, as applicable; but on appeal the judge disposed
of the claim under Ont. St. 1904, c. 10, § 21, quoted post, § 2281).
§ 7. Constitutional Rules ; Ez post facto Laws.
[iVote 7, par. 1; add:]
1906, People v. Johnson, 185 N. Y. 219, 77 N. E. 1164 (dispensing with the oath for children).
[Note 9 ; add, under Accord:]
1905, Wester v. State, 142 Ala. 56, 38 So. 1010 (St.' 1903, No. 32, allowing the wife to testify
against the husband in certain cases, is not unconstitutional as ex post facto).
1909, Patterson's Estate, 155 Cal. 626, 102 Pac. 941 (C. C. P. § 1339 as amended by St. 1907,
c. 100, p. 122, Mar. 6, permitting probate of a will destroyed by public calamity, held to
permit proof of a will destroyed before passage of the act) . 1909, James v. Oakland Traction
Co., 10 Cal. App. 785, 103 Pac. 1082 semble (statute limiting speed of ears is not a rule of
evidence).
1907, Campbell v. Skinner Mfg. Co., 63 Pla. 632, 43 So. 875 ("a right to have one's con-
troversies determined by existing rules of evidence is not a vested right" ; said of a statute
enabling proof of lost deeds).
1907, State «. Dunn, 13 Ida. 9, 88 Pac. 235 (St. 1905, Mar. 7, p. 352, excluding parol evidence
of the ownership of a recorded brand, held applicable to a brand on an animal sold before the
statute).
1906, Hall V. Reinherz, 192 Mass. 52, 77 N. E. 880 (declarations made before the statute
of 1898, quoted post, § 1576, and admissible only by virtue thereof, received). 1907,
Woodvine v. Dean, 194 Mass. 40, 79 N. E. 882 (a statute enacting a rule of evidence "gen-
eral in form . . . and having reference only to civil cases, must be regarded as applicable
to any -future trial, whether or not in a case pending at the time it took effect" ; here, a
rule of St. 1905, c. 288, making the land court's report prima facie evidence).
1914, People v. Qualey, 210 N. Y. 202, 104 N. E. 138 (Laws 1912, c. 890, Apr. 15, adding
§ 2216, C. Cr. P., for the admission of the oflBcial stenographic report of testimony before a
magistrate is not invalid for admitting such testimony at a trial for an offence occurring
before the statute was passed).
1904, McKinstry v. Collins, 76 Vt. 221, 56,Atl. 985 (a statute having Umited the admissibility
of certificates of death, since the first trial of the case, the certificate admitted on the first
trial was held inadmissible on the second).
1906, Samuel & Jessie Kenney P. Home v. Kenney, 45 Wash. 106, 88 Pac. 108 (a statute of
1890 held applicable to prior evidential utterances ; "there appears to be no vested right to
any rule of evidence").
[Note 9 ; add, under Contra :]
1903, State ». Wenzel, 72 N. H. 396, 56 Atl. 918 (admission of an illegal keeping of liquor,
as a misdemeanor, in December, not admitted to prove intent in April, a statute having
meanwhile made the act a felony ; obscure theory).
4
ADMISSIBILITY IN GENERAL § 15
[Note 9 ; aM, under Distinguish ;]
1913, Cameron v. U. S., 231 U. S. 710, 34 Sup. 244 (the repeal by St. 1910, May 7, of U. S.
Rev. St. 1878, § 860, giving immunity from prosecution when a witness has criminated
himself, does not take away immunity once gained by testimony given while U. S. R. S.
§ 860 was in force).
[Note 10; aM:\
1909, Downs v. Blount, 5th C. C. A., 170 Fed. 15, 19 (Tex. Rev. St. 1895, § 2312, as amended
by St. 1907, Apr. 12, c. 165 providing that an instnunent recorded for ten years may be
evidenced by certified copy without other evidence of execution concerns a rule of evidence
which may be changed by statute, and not a vested right).
[Text, p. 23, 1. 8 :]
For " property deprivations," read " penal measures."
§ 9. The Two Asioms of Admissibility ; I, None but Facts having Rational
Probative Value are Admissible.
[Note(>; add:]
Trial by battle occurs in Shakspeare : Henry VI, Ft. II, II, 3 (Horner and Feter battle to
determine whether Horner is a traitor).
[Note 8; add:]
In The Athenian Mercury, a periodical printed between 1690 and 1697 (selections reprinted
as The Athenian Oracle, re-edited by J. Underbill, 1892, in the Camelot Series) appeared a
paragraph on corpse-bleeding, as to which the editors assert: "Legislators have thought
fit to authorise it and use this trial as an argument at least to frighten, though 'tis no con-
elusive one to condemn them. Yet we grant that many murders have been found out by
it" (p. 108). In another passage, after an account of some trials for witchcraft in 1692,
where the cold-water test was used, the correspondent queries (p. 123), "Is it lawful to
attempt the discovery of witches by swimming, and how far is it an evidence against them ? "
To which the editor answers that "such sort of examination by swimming etc. is utterly
unlawful, and a breach of the fifth commandment." Evidently the law and the custom
were just coming to be heterodox in this period.
§ 13. Multiple Admissibility.
[Note 2 ; add, under Accord :]
1913, Cooper v. Seaboard A. L. R. Co., 163 N. C. 150, 79 S. E. 418 (applying Court Rule 27).
1908, State v. Greene, 33 Utah 497, 94 Fac. 987.
§ 15. Curative Admissibility; Prior Introduction of Inadmissible Evidence
as Estopping from Subsequent Objection.
[?fotel; add:]
1913, R. V. Cargill, 2 K. B. 271 (virginity of the girl in rape under age).
1913, People v. Newman, 261 111. 11, 103 N. E. 689 (a co-indictee having testified to police
persecution as the motive for the charge, and having denied former crimes, the prosecution
was not allowed to prove one of the crimes to rebut the testimony to police malice).
[Note 2, par. 1 ; add :]
1903, R. V. Noel, 6 Ont. L. R. 385 ("Even it inadmissible matters are introduced in cross-
examination, the right to re-examine remains ; . . . if it was desired to avoid re-examination
upon it, it should have been expunged" ; Blewett v. Tregonning followed).
5
§ 15 ADMISSIBILITY IN GENERAL
[Note 2 — continued]
1905, Louisville & N. R. Co. v. Quinn, 145 Ala. 657, 39 So. 616 (carrier putting off a pas-
senger .before reaching destination).
1905, German-Amer. Ins. Co. «. Brown, 75 Ark. 251, 87 S. W. 135 (opinion testimony).
1904, See v. Wabash R. Co., 123 la. 443, 99 N. W. 106 (repairs at a crossing, contradiction
allowed).
1905, Warren L. S. Co. •». Farr, 142 Fed. 116, C. C. A. (conversion), 1906, Ball ». U. S.,
741 Fed. 32, 41, C. C. A. (conviction of crime, offered to discredit the accused as witness).
Compare the rules for re-examination {post, § 1896) and rebuttal {post, § 1873).
[Note 3, par. 1 ; add :]
1911, Denver City T. Co. v. Hills, 50 Colo. 328, 116 Pac. 125, semble (street-car accident).
1904, Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28 (a party introducing the op-
ponent's admission during an offer of compromise by the former was not allowed to exclude
the opponent's evidence in explanation).
1906, Mash v. People, 220 111. 86, 77 N. E. 92 (rule applied to justify the counsel's allusion
to the defendant wife's failure to testify).
[Note 3, par. 2 ; add :]
So, too, the trial Court's discretion in admitting it will not be disturbed : 1906, Bennett v.
Susser, 191 Mass. 329, 77 N. E. 884.
§ 16. Judicial Discretion.
[Note 4; add:]
1906, State v. Monich, 74 N. J. L. 522, 64 Atl. 1016.
[Note 5, par. 2; add:]
1905, IndianapoUs k M. R. T. Co. v. Hall, 165 Ind. 557, 76 N. E. 242 ("There must be a
question asked which is calculated to elicit the testimony excluded").
1904, Schilling v. Curran, 30 Mont. 370, 76 Pac. 998 (the counsel "now makes formal offer
to prove that S. knew of this transaction," etc., held insufficient without calling the witness
or affirmatively showing that the offer is made in good faith, etc.).
[Note 8; add:]
1905, Indianapolis & M. R. T. Co. v. Hall, 165 Ind. 557, 76 N. E. 242.
[Note 10; add:] '
Accord: 1905, Deitrich v. Kettering, 212 Pa. 356, 61 Atl. 927.
Contra, but unsound :
1904, State v. Charles, 111 La. 933, 36 So. 29 (homicide ; certain declarations of the deceased,
offered improperly as dying declarations and rea gestce, admitted, being properly receivable
as self-contradictions of other declarations of the deceased ; no authority cited).
§ 17. The OfEer of Evidence.
[Note 5, par. 1 ; add :]
1910, National Citizens' Bank v. Thro, 110 Minn. 169, 124 N. W. 965 (here two judges
dissented because the colloquy at the trial showed sufficiently that the evidence ready to
be offered, but not formally offered, was material).
1910, Seibel-Suessdorf C. & I. M. Co. v. Manufacturers R. Co., 230 Mo. 59, 130 S. W. 288
(a "mere expression of a desire to introduce evidence" is not enough).
1909, Butterfield v. Beaver City, 84 Nebr. 417, 121 N. W. 592 (questions were excluded, but
the expected answer was not formally offered; held insufficient).
6
ADMISSIBILITY IN GENERAL § 18
[Note 5 — continued]
1907, Madson v. Rutten, 16 N. D. 281, 113 N. W. 872 (questions asked and rejected, but
not followed by an "offer of proof," held inadequate).
1909, Missouri Pac. R. Co. v. Castle, 8th C. C. A., 172 Fed. 841 (a witness being called and
a certain question being excluded, the counsel offered to prove certain other facts, without
asking the appropriate questions; held sufficient).
[Note 8; add:]
Contra: 1910, Finch & Co. v. Zenith Furnace Co., 245 111. 686, 92 N. E. 521 ("We can-
not adopt a view so narrow").
[Text, p. 52, par. b (1) ; at the end of the sentence, after note 7, add:]
A common application of this rule is found where on objection the trial
Court excludes an indefinite question (e. g., "What did he say?") whose
answer might or might not contain irrelevant or otherwise objectionable
matters. In other words, the Court and the opponent are entitled to an
offer specific enough, to permit of intelligent objection and ruling; whether
the offering party need specify precisely the expected answer or only the
general objective of the question, and whether he needs to volunteer this
or may wait until the Court requests it, and whether the context of the
testimony ipay sufiice for the purpose, — these must depend much upon
the case in hand.'"
'" 1912, Birmingham R. L. & P. Co. v. Barrett, — Ala. — , 60 So. 262 (rehearsing prior
cases in this State). 1905, Marshall v. Marshall, 71 Kan. 313, 80 Pac. 629 (citing cases;
good opinion by Mason, J.).
This question, however, tends often to merge into that of § 20, post (embodying the
answer in a bill of exceptions) and that of § 1871, post (whether there was an implied offer
to prove other facts making the offer relevant), and Courts tend not to distinguish.
[Text, p. 52, end of § ; add:]
c. Finality of the Offer. Evidence once offered and admitted cannot
ordinarily.be leithdrawn by the offering party, even by allowance of the
Court, without consent of the opponent, — at least, merely because the
offering party changes his mind about using it." But where an offer of
evidence has been objected to and nevertheless admitted, the Court over-
ruling the objection, the offering party may later, it would seem, with the
Court's consent, withdraw the evidence with a view to obviating the possi-
bility of an error of ruling ; in such a case, the question then becomes one
of a revocation of the ruling {fast, § 19).
" 1908, Alabama Great S. R'. Co. «. Hardy, 131 Ga. 238, 62 S. E. 71.
§ 18. The Objection.
[Text, p. 53, 1. 4; after "evidence," add a new note la :]
i» In Baltimore & O. R. Co. s. State, 107 Md. 642, 69 Atl. 439 (1908), the above passage
is quoted, and is stated not to be "in complete harmony with other writers." Nevertheless
it is the only sound rule ; i. e. for purposes of trial, the Court is free to act without waiting
for an objection ; but for purposes of appeal, a party not objecting has no standing. In the
7
§18 ADMISSIBILITY IN GENEEAL
[Note 18 — continued]
above case, this principle was satisfied, for the appealing party did object, his objection
happened to be to a ruling of the Court made on its own motion ; if the other party had
appealed, in the above case, the principle would have prevented him from taking any
benefit.
[Text, p. 53, 1. 7; insert:]
1833, Shaw, C. J., m Cady v. Norton, 14 Pick. 236 : "The right to except [i. e. object] is a
privilege, which the party may waive ; and if the ground of exception is known and not
seasonably taken, by implication of law it is waived. This proceeds upon two grounds;
one, that if the exception is intended to be relied on, and is seasonably taken, the omission
may be supplied, or the error corrected, and the rights of all parties saved. The other is,
that it is not consistent with the purposes of justice for a party, knowing of a secret defect,
to proceed and take his chance for a favorable verdict, with the power and intent to annul
it as erroneous and void, if it should be against him."
[Note 1, pan 1, 1. 9; add:]
1905, Tutwiler C. C. & I. Co. ■». Nichols, 145 Ala. 666, 39 So. 762.
1906, Patton v. Bank, 124 Ga. 966, 53 S. E. 664.
1904, People v. Scalamiero, 143 Cal. 343, 76 Pac. 1098. 1907, Short v. Frink, 151 Cal. 83,
90 Pac. 200.
1904, Macfeat v. Phila. W. & B. R. Co., 5 Del. Penn. 52, 62 Atl. 898.
1905, State v. Castigno, 71 Kan. 851, 80 Pac. 630.
1907, Dick V. State, 107 Md. 11, 68 Atl. 286. 1908, Baltimore & O. R. Co. v. State, 107
Md. 642, 69 Atl. 439 fleading questions).
1905, State v. Crawford, 96 Minn. 95, 104 N. W. 822.
1913, State v. Reilly, 25 N. D. 339, 141 N. W. 720 (hypothetical question).
1905, Davidson S. S. Co. v. U. S., 142 Fed. 315, C. C. A.
1905, Shandrew v. Chicago St. P. M. & O. R. Co., 142 Fed. 320, C. C. A. ("immaterial,
incompetent, and irrelevant").
1909, Walston v. AUen, 82 Vt. 549, 74 Atl. 225.
Of course, where the objection could have been made at the time of the question, a later
motion to strike out need not be granted ; this seert^ elementary logic :
1906, State v. Forsha, 190 Mo. 296, 88 S. W. 746.
1913, Sanger v. Ba<;on, — Ind. — , 101 N. E. 1001 (no objection being made at -the time of
question or to answer, a later motion to strike out is too late).
This rule, as sonjetimes stated, is given a supplement, namely, that where objection is not
made, to an obviously improper question, until the answer of the witness has been given, then
the trial Court's discretion in not striking out the answer will be conclusive unless abused :
1906, State v. Hummer, 73 N. J. L. 714, 65 Atl. 249. This qualification is too loose; if
counsel does not make timely objection, that should be an absolute end of any prohibitory
rule of evidence that might have been involved. The ruling in People v. Scattura, 238
111. 313, 87 N. E. 332 (1909), that upon an irrelevant non-responsive answer a motion to
strike out, not made till the close of argument, suflBces, is totally unjustifiable.
For the effect of a motion to strike out, see post, § 19, par. (2), and infra, this section, n. 17.
[Text, p. 54, insert befqre par. (2) :]
Where the tenor of the question is not objectionable, but is answered with
inadmissible matter not responsive to the question, the objection is season-
able ; its form here is a motion, to strike out the answer.'''
16 1913, Marinoni v. State, -^ Ariz. — , 136 Pac. 626 (collecting cases).
Distinguish the doctrine of non-responsive answers in chancery (post, § 785).
8
ADMISSIBILITY IN GENERAL § 18
[Note 3, 1. 8; add:]
1911, Hutchinson v. Bambas, 249 III. 624, 94 N'. E. 987 (questions as to letters not produced).
1912, Bjork v. Glos, 256 III. 447, 100 N. E. 233 (objections to abstracts of title, made at the
time of an application for registration before a title-examiner, held insuflBcient, because not
specifying at the time certain grounds of objection which could have been obviated).
[Note 4, par. 1 ; add :]
1908, King v. Green, 7 Cal. App. 473, 94 Pac. 777.
1905, White v. Southern R. Co., 123 Ga. 353, 51 S. E. 411 (applying Code § 5314).
1911, Essex V. Ksensky, 90 Nebr. 437, 133 N. W. 868.
1912, Eldridge v. Compton, 30 Okl. 173, 119 Pac. 1121 (defect in notary's certificate).
1906, Columbus R. Co. v. Patterson, 143 Fed. 245, C. C. A.
1908, Groot v. Oregon Short Line, 34 Utah 152, 96 Pac. 1019 (witness not reading over
the deposition).
[Note 6; add:]
1912, Standard Talking M. Co. v. Matthews S. Co., 6 Ala. App. 188, 60 So. 481 (reviewing
the cases).
[Note 7; add:]
1909, Floral Creamery Co. v. Dillon, 83 Conn. 65, 75 Atl. 82.
1904, Cudlip V. Journal Pub. Co., 180 N. Y. 85, 72 N. E. 925 (under C. C. P. § 911, since
objections to a deposition need not be noted at the taking, the cross-examiner may on the
trial object to parts of his cross-examination when offered by the opponent after the former's
refusal to offer them).
[Note 8; add:]
1909, People v. Hogan, 11 Cal. App. 599, 105 Pac. 938.
1903, Bair v. Struck, 29 Mont. 45, 74 Pac. 69.
1904, Mease v. United T. Co., 208 Pa. 434, 57 Atl. 820.
1904, Stickney v. Hughes, 12 Wyo. 397, 75 Pac. 945.
[Note 9; add:]
1908, Putnal v. State, 56 Fla. 86, 47 So. 864.
[Note 10; add:]
An objection to a deposition on the ground that the witness is present in the court need not
be made till then ; but special circumstances affect the time of making this objection (post,
§ 1415).
[Note 13; add:]
1910, Belskis v. Dering Coal Co., 246 111. 62, 92 N. E. 575 (failure to object to a spontaneous ,
exclamation does not bar objection at the second trial).
1904, Meekins v. Norfolk & S. R. Co., 136 N. C. 1, 48 S. E. 601 (former testimony of one
deceased between the trials ; a certain hearsay part of his testimony excluded, although not
objected to at the former trial).
[Note 14; add, as a new paragraph :]
There is, however, a rule of general application to infants, as a part of which the Court
will rule in their favor on points upon which no exception was taken on their behalf :
1904, Parker v. Safford, 48 Fla. 290, 37 So. 567. Compare § 1076, notes 7, 8, post, and
§ 1063, note 1.
9
§ 18 ADMISSIBILITY IN GENERAL
[iVo/el5; add:]
1906, Benton v. State, 78 Ark. 284, 94 S. W. 688 (an objection "to all evidence of actions,
conversations, etc., after the commission of the offence," does not avail for subsequent
testimony of the sort, unless by consent).
[Note 17; add:]
The term "motion to strike out evidence" is used in some localities to represent a form of
objection. It is, however, an ambiguous and unsatisfactory term, because the things
signified by it are otherwise better known in orthodox practice. The following uses of the
term are to be distinguished :
(1) A motion to strike out a piece of evidence which ought to have been objected to at the
time of its offer is merely another term for an objection, and is governed by the rules as to the
time of an objection (supra, par. a, notes 1-14). i
(2) A motion to strike out evidence which was admitted conditionally on the subsequent
supplying of other evidence is a mode of taking advantage of the doctrine of conditional
admissibility (ante, § 14, post, § 1871).
(3) A motion to strike out a certain class of testimony which is required by law to be
corroborated in order to be legally effective may be a proper method of taking advantage of
such rules (post, §§ 2030-2091).
(4) A motion to strike out a document which in the course of the evidence turns out not
to be properly authenticated may be a proper method of excluding it (post, §§ 2129-2169).
(5) A motion to strike out any mass of evidence which at the close of a case appears
insufficient for the particular issue may serve to eliminate it ; but more usually the same pur-
pose will be better attained by a motion to take the case from the jury or by an instruction
to the jury (post, §§ 2494-2496).
(6) Where the answer to an unobjectionable question is inadmissible and non-responsive,
a motion to strike out the answer is the proper form (supra, n. la). But here the point is
simply that the rule requiring an objection to be made before the answer is uttered does not
on principle apply ; and the tardy motion to strike out is justified, not merely because the
answer is non-responsive, but because it is inadmissible in its tenor. An unfounded notion
is often seen that a non-responsive answer is in itself improper ; this fallacy is examined
more fully, post, § 6785.
An example of the failure to distinguish carefully these different uses will be seen
in Walkei* v. Lee, 51 Fla. 360, 40 So. 881 (1906).
[Note 18, par. 1 ; add :]
1904, Weaver v. State, 139 Ala. 130, 36 So. 717. 1907, Sanders v. Davis, 153 Ala. 375, 44
So. 979.
1904, Illinois C. R. Co. v. Prickett, 210 111. 140, 71 N. E. 435 (qualified rule). 1907, Mer-
chants' & F. State Bank v. Dawdy, 230 111. 199, 82 N. E. 606 (deed).
1905, Hicks V. State, 165 Ind. 440, 75 N. E. 641.
1907, Williams v. State, 168 Ind. 87, 79 N. E. 1079 (irrelevant and immaterial).
1907, Goss V. Goss, 102 Minn. 346, 113 N. W. 690 (warning as to prior self-contradictions).
1904, Longan v. Weltmer, 180 Mo. 322, 79 S. W. 655 (hypothetical question).
1904, Weatherford v. Union P. R. Co., — Nebr. — , 98 N. W. 1089.
1903, State v. Hendrick, 70 N. J. L. 41, 66 Atl. 247 (pointmg out special modes of curing the
defect).
1905, Willet V. Morse, — N. J. L. — , 60 Atl. 362.
1913, People v. Cummins, 209 N. Y. 283, 103 N. E. 169 (equally for criminal cases).
1908, Buchanan v. Minneapolis T. M. Co., 17 N. D. 343, 116 N. W. 335. 1909, Flora v.
Mathwig, 19 N. D. 4, 121 N. W. 63.
1904, Enid & A. R. Co. v. Wiley, 14 Okl. 310, 78 Pac. 96.
1906, Newcomb v. State, 49 Tex. Cr. 550, 95 S. W. 1048 (irrelevant and immaterial).
1904, Choctaw, 0. & G. R. Co. v. McDade, 191 U. S. 64, 24 Sup. 24.
10
ADMISSIBILITY IN GENERAL § 18
[Note 18 — continued]
1905, State v. Nelson, 39 Wash. 221, 81 Pac. 721.
For the same reason, an objection may not be in gross to a mass of unspecified testimony.
1905, O'Brien v. Knotts, 165 Ind. 308, 75 N. E. 582 (motion to strike out all testimony on a
certain subject, insuflicient).
[Note 19; add:]
1905, Braham ». State, 143 Ala. 28, 38 So. 919.
1903, Roche ». Llewellyn I. Co., 140 Cal. 563, 74 Pac. 147.
1905, Humphrey v. Pope, 1 Cal. App. 374, 82 Pac. 223 (marital communications).
1907, Chicago R. I. & P. R. Co. v. Rathneau, 225 111. 278, 80 N. E. 119.
1913, Dowell V. State, — Ind. — , 101 N. E. 815 (conversation in absence of accused).
1906, Sparks v. Terr., 146 Fed. 371, C. C. A. ("when the reason for the objection is readily
discernible").
1913, State v. Shaw, 75 Wash. 326, 135 Pac. 20.
On the principle of Multiple Admissibility {ante, § 13), it follows that where the opponent,
without objecting, desires to restrict the evidence to its sole legitimate purpose, he must
ash an instruction from the Court, otherwise he cannot complain of the possibility of the
jury's having misapplied it to other and improper purposes : Cases cited ante, § 13, n. 2.
[Text, p. 59 ; rewrite the paragraph beginning "But when a general objection" so as to
read:]
But when a general objection is sustained by the trial Court, it may be
presumed that some valid ground was apparent to the judge without express
statement; and as the exception is here to be taken by the proponent of
the evidence, it is fair to insist that he should have asked for the specific
ground of objection, if he did not perceive it, or should have made an offer
to obviate it, if he did perceive it, or should have stated clearly the precise
basis of his claim for admissibility, etc.
[Note 20; add:]
1904, Matthews v. Farrell, 140 Ala. 298, 37 So. 325 (but here the Court puts its decision on
inappropriate grounds).
1907, Short v. Frink, 151 Cal. 83, 90 Pac. 200.
1903, Spohr v. Chicago, 206 111. 441, 69 N. E. 515.
1904, State v. Leuhrsman, 123 la. 476, 99 N. W. 140.
1906, Luckenbach v. Sciple, 72 N. J. L. 476, 63 Atl. 244 (good opinion by Garrison, J.).
1911, Rosenberg v. Sheahan, 148 Wis. 92, 133 N. W. 645.
Contra, on the facts : 1906, Hicks v. Hicks, 142 N. C. 231, 55 S. E. 106 (here the unusual
suggestion is made that "the judge could have called upon the counsel to state what he
expected to prove"; but why could not the counsel himself speak up, without waiting to
be prodded ?).
[Note 21; add:]
1904, Parrish v. State, 139 Ala. 16, 36 So. 1012 (but otherwise where the nature of the
answer may be presumed).
1908, Ferry v. Henderson, 32 D. C. App. 41.
1907, Sims V. State, 54 Fla. 100, 44 So. 737 (judgment in a civil case, offered on a charge
of embezzlement).
1903, Illinois C. R. Co. v. Wade, 206 111. 523, 69 N. E. 565 (witness' contradiction).
1904, Ewen v. Wilbor, 208 111. 492, 70 N. E. 575.
1906, O'Donnell v. People, 224 111. 218, 79 N. E. 639 (conviction of crime to impeach a wit-
11
§ 18 ADMISSIBILITY IN GENERAL
[Note 21 — continued]
ness ; the objection that a copy of the record should be used was not allowed to be raised
on appeal). 1913, Chicago v. Gilsdorff, 258 111. -212, 101 N. E. 546 (objection to a deed's
tenor as not giving title, held unavailable to raise an objection to the certified copy's lack
of signature).
1910, Pulley v. State, 174 ^ad. 542, 92 N. E. 550 (rape complaint). 1913, Shilling v. Varner,
— Ind. — , 103 N. E. 404 (drainage assessment).
1913, Seckerson v. Sinclair, — la. — , 140 N. W. 239 (extent of specification for objections
to a hypothetical question, considered).
1906, Magnoha M. Co. v. Gale, 191 Mass. 487, 78 N. E. 128.
1903, Weeks v. Hutchinson, 135 Mich. 160, 97 N. W. 695.
1905, Bragg v. Metropolitan St. R. Co., 192 Mo. 331, 91 S. W. 527 (hypothetical questions ;
pungent opinion by Lamm, J.).
1907, Hildebrand v. United Artizans, 50 Or. 159, 91 Pac. 542 (hypothetical question).
[Note 23; add:]
Contra, semble, where the tenable one could have been obviated at the trial : 1908, Areola v.
Wilkinson, 233 111. 250, 84 N. E. 264.
The following ruling seems erroneous : 1904, People v. Albers, 137 Mich. 678, 100 N. W.
908 (perjury ; offer of the defendant's good character for veracity, admissible for him as
defendant, but not admissible for him as witness because he did not testify ; an objection
to it was sustained ; held erroneous, though the offering counsel did not state the specific
purpose).
[Note 24:; add:]
1904, Kirby v. State, 139 Ala. 87, 36 So. 721.
1904, Markey v. State, 47 Fla. 38, 37 So. 63.
1903, Hoodless v. Jemigan, 46 Fla. 213, 35 So. 656.
1906, Johnson v. State, 125 Ga. 243, 54 S. E. 184.
1906, State v. Crump, 116 La. 978, 41 So. 229 (dying declaration).
1905, Thornton-Thomas M . Co. i). Bretherton, 32 Mont. 80, 80 Pac. 10 (series of documents) .
1911, State V. Smith, 33 Nev. 438, 117 Pac. 19.
1908, Chicago Gt. Western R. Co. v. McDonough, 8th C. C. A., 161 Fed. 657, 671 (offer
defendant's conduct in making certain repairs; motion to strike out all, held not
available on appeal, because a part of the evidence was not objectionable).
The following case is peculiar :
1908, Cooper v. Bower, 78 Kan. 156, 164, 96 Pac. 59, 794 (breach of marriage promise ; plain-
tiff's question to a witness concerning the plaintiff's admissions, " what she said about any
agreement with Mr. C. to marry, and his conduct in relation thereto," was admitted, overrul-
ing defendant's general objection ; held that the rule requiring the objection to specify the
part objected to was not applicable where the offer contained in a single oral question two or
more pieces of testimony one of which was objectionable ; careful opinion, by Mason, J. ;
but with deference it is suggested that the opinion does not adequately distinguish the
respective bearings of the present principle and of that of § 18, par. b, n. 8, ante; the spirit
of the present principle is to force an objector to be specific ; the aim of the other principle is
to force an offeror to separate his offer so that no more than their due effect will be given
to objections ; the other principle does not come to bear until the present one has been
fulfilled ; now in the case in hand the objector had not done his full duty, hence the offeror
was not yet bound to do his, viz. separate the objectionable part to make his offer valid).
[Note 25; add:]
1904, Rhodes v. State, 141 Ala. 66, 37 So. 365.
1905, Spencer's Appeal, 77 Conn. 638, 60 Atl. 289.
1904, Alford v. State, 47 Fla. 1, 36 So. 436.
12
ADMISSIBILITY IN GENERAL § 18
[Note 25 — continued] ,
1905, Freeman v. State, 50 Fla. 38, 39 So. 785.
1906, Hoodless v. Jernigan, 51 Fla. 211, 41 So. 194 (several documents).
1906, Mash v. People, 220 111. 86, 77 N. E'. 92.
1906, State v. Simmons, 74 Kan. 799, 88 Pac. 57 (deposition).
1904, Wilson v. Pritchett, 99 Md. 583, 58 Atl. 360. 1911, Russell v. Carman, 114 Md. 25
78 Atl. 903.
1908, State v.- Dahlquist, 17 N. D. 40, 115 N. W. 81 (freight records).
1906, Metz V. Willitts, 14 Wyo. 511, 85 Pac. 380.
[Text, p. 61, 1. 14; add a new par. :]
Moreover, where a question is objected to, and the objection is properly
overruled, but the answer which follows contains improper evidence, the
objection to the question is of no avail ; a new objection must be made spe-
cifically to the answer ; because the answer contains new matter, and the
nature of the alleged impropriety cannot be known until the opponent speci-
fies it. Here the form of the objection is a motion to strike out.^^"
2=° 1877, Gould V. Day, 94 U. S. 405.
1911, Henderson v. Coleman, 19 Wyo. 183, 115 Pac. 439.
[Note 26, 1. 6 from below; add:]
1913, Lockridge v. Brown, — Ala. — , 63 So. 524 (asking in rebuttal the same improper
question ah-eady asked by the objector, held not the subject of complaint on appeal).
1908, St. Louis I. M. & S. R. Co. v. Flinn, 88 Ark. 505, 115 S. W. 142 (opinion testimony).
1912, PrankUn v. U. S., C. C. A., 193 Fed. 334 (handwriting testimony).
1906, Southern R. Co. v. Blanford's Adm'x, 105 Va. 373, 54 S. E. 1 (custom as to switch-
lights on other railroads).
[Note 26, at the end ; add :]
1907, Short v. Frink, 151 Cal. 83, 90 Pac. 200.
1904, Chicago City R. Co. v. Uhter, 212 111. 174, 72 N. E. 195 (personal injuries ; the plaintiff
having introduced against objection hearsay evidence negativing prior injm'ies received, the
defendant was held not to waive by afterwards rebutting with similar hearsay aflBrming
the injuries).
1900, Richardson v. Webster City, 111 la. 426, 430, 82 N. W. 921 (objection to opinion evi-
dence of damage, not waived by subsequent similar evidence).
1909, United R. & E.- Co. v. Corbin, 109 Md. 442, 72 Atl. 606 (the mere cross-examination
of the witness on the subject is not a waiver).
1906, State v. Beckner, 194 Mo. 281, 91 S. W. 892 (murder; the prosecution having erro-
neously introduced the defendant's bad character for violence, his rebuttal by evidence of
good character held not a waiver).
1907, Cheney's Estate, 78 Nebr. 274, 110 N. W. 731 (opinion evidence).
1900, Horres v. Chemical Co., 57 S. C. 192, 35 S. E. 500 (objection to improper opinion of
speculative damages, held not waived by subsequent similar evidence).
Compare the rule for curative admissiMlity (ante, § 15).
[Note 27,1 i; add:]
1905, Schutz V. Union R. Co., 181 N. Y. 33, 73 N. E. 491 ("where an objection has once
been distinctly raised and overruled, it need not be repeated to the same class of evidence").
1904, Southern L. & T. Co. v. Benbow, 135 N. C. 303, 47 S. E. 435 (an offer of a part of
former testimony was rejected as being too fragmentary ; the whole was then offered and
admitted ; this was held a waiver of the exception).
1904, Cheek v. Oak G. L. Co., 134 id. 225, 46 S. E. 488 (similar).
13
§1S ADMISSIBILITY IN GENERAL
[Note 27, at the end; add:]
The tender by an objector of an instruction limiting the evidential effect of evidence admitted
against the objection is not a waiver of the objection to that ruling :
1904, Myers v. Manlove, 164 Ind. 128, 71 N. E. 893.
A. failure to object to a document will extend, not only to the genuineness of it, but also to
an agent's authority to execute, yet not to its legal sufficiency (jpost, § 2132).
Usually, a failure to renew an oflter, after the opponent's withdrawal of an objection im-
properly sustained, would be a waiver of the error ; but not always : 1905, Main v. Radney,
— Ala. — 39 So. 981.
It is common learning that a party obtaining a responsive answer (post, § 785) to a question
asked by himself has waived objection by the very asking : 1905, O'Brien v. Knotts, 105 Ind.
308, 75 N. E. 582. Thus the only question usually can be as to responsiveness ; compare
ante, n. 13, par. (6). An example of a poor ruling on this subject is seen in Bishop v. Bishop,
124 Ga. 293, 52 S. E. 743 (1905).
§ 19. The Ruling.
[Note 1, at the end; add:]
Compare the following case : 1906, Stitt v. Rat Portage L. Co., 98 Minn. 52, 107 N. W.
824 (collecting prior rulings in this jurisdiction).
Compare the following, said of a trial in chancery : 1904, Asbury v. Hicklin, 181 Mo.
658, 81 S. W. 390 ("The practice ... of reserving the ruling until the decision of the case
is erroneous").
But the reservation of a ruling on evidence admitted may well require that the opponent
should formally except later for failure to rule, in order to raise the point on appeal : 1904,
Naas V. Welter, 92 Minn. 404, 100 N. W. 211.
[Note 3, par. 1 ; add :]
1904, De Yampert v. State, 139 Ala. 53, 36 So. 772.
1907, People v. Solani, 6 Cal. App. 103, 91 Pac. 654.
1905, Johnson v. People, 33 Colo. 224, 80 Pac. 133.
1906, Illinois C. R. Co. v. Bailey, 222 111. 480, 78 N. E. 833.
1906, State v. Moran, 131 la. 645, 109 N. W. 187 (confession). 1907, Brown Land Co. v.
Lehman, 134 la. 712, 112 N. W. 185. 1907, State v. Scott, 136 la. 152, 113 N. W. 758.
1907, Gulliford v. McQuillan, 75 Kan. 454, 89 Pac. 927.
1904, Allen v. Com., — Ky. — 82 S. W. 589.
1905, White v. Com., 120 Ky. 178, 85 S. W. 753.
1905, Baumgartner v. Eigenbrot, 100 Md. 508, 60 Atl. 601.
1912, Allen v. Boston Elevated R. Co., 212 Mass. 191, 98 N. E. 618 (medical books improp-
erly quoted).
1904, McNaughton v. Smith, 136 Mich. 368, 99 N. W. 382.
1910, State v. Martin, 229 Mo. 620, 129 S. W. 881.
1910, Fuller v. Robinson, 230 Mo. 22, 130 S. W. 343.
1910, State «. Rees, 40 Mont. 571, 107 Pac. 893.
1909, Connecticut River Power Co. ii. Dickinson, 75 N. H. 353, 74 Atl. 585.
1906, Morgan v. Terr., 16 Okl. 530, 85 Pac. 718.
1904, State v. Eggleston, 45 Or. 346, 77 Pac. 738.
1910, Darnell v. State, 58 Tex. Cr. 585, 126 S. W. 1122.
1909, Chicago M. v. St. P. R. Co. & Newsome, 8th C. C. A., 174 Fed. 394.
1909, Turner & American Security v. T. Co., 213 U. S. 257, 29 Sup. 420 ("the general rule is
that the admission of incompetent evidence is not reversible error if it subsequently is
distinctly withdrawn from the consideration of the jury" ; this seems an incorrect mode of
statement, for in strictness the revocation of the ruling removes the original ruling and its
error).
1908, Loafbourow v. Utah L. & R. Co., 33 Utah 477, 94 Pac. 980.
14
ADMISSIBILITY IN GENERAL §20
[Note 3 ; add, in a new paragraph :]
So, also, an erroneous exclusion of evidence may be cured by svhsequently admitting it :
1904, Post V. Leland, 184 Mass. 601, 69 N. E. 361. .
Distinguish the question whether the party objecting is entitled to do so by a motion to
strike out or an instruction to disregard, made later in the cause ; here, on the principle of
§ 18-, par. a, arde, the motion or instruction comes too late, if the ground of it was knowable
at the time of the offer of the testimony : 1904, Harbour v. State, 140 Ala. 103, 37 So. 330.
§ 20. The Exception.
[Note 2; add:]
1903, Cady v. Cady, 91 Minn. 137, 97 N. W. 580.
1905, State v. Bailey, 190 Mo. 257, 88 S. W. 733. 1911, Harding v. Missouri Pacific R. Co.,
232 Mo. 444, 134 S. W. 641 (noting that herein the procedure for opposing an instruction
of the court and an offer of evidence is different, in that no objection is needed for the
former; overruling Sheets v. Ins. Co., 226 Mo. 613, 126 S. W. 413; Woodson, J., diss.;
careful opinions).
1904, Alden v. Supreme Tent, 178 N. Y. 535, 71 N. E. 104 (applying special Code provisions).
1913, Stroberg v. Merrill, — Or. — , 135 Pac. 335 (rule applied to findings by court without
jury).
1906, Morgan v. Lehigh V. C. Co., 215 Pa. 443, 64 Atl. 633 (referee).
1907, Thomas v. Com., 106 Va. 855, 56 S. E. 705.
The following seems peculiar : 1905, Close v. Chicago, 217 111. 216, 75 N. E. 479 (whether
a city ordinance is void on its face does not need an exception, otherwise where the objection
is to the insufficiency of description, etc.).
[Text, p. 66, in par. (2), at the end of the second quotation, add a new note 3o :]
*" The practice as to bills of exception, certificates, etc., depends largely on local rules of
court ; compare the following : 1906, State v. Rodriguez, 115 La. 1004, 40 5o. 438 (practice
in criminal cases, under St. 1896, no. 113).
1906, Lemmert v. Lemmert, 103 Md. 57, 63 Atl. 380.
1904, Hillier v. Farrell, 185 Mass. 434, 70 N. E. 424 (before a master, under chancery rules
31 and 32).
[Note 4; add, under Evidence Admitted:]
1905, Starke v. State, 49 Fla. 41, 37 So. 850.
1905, Caldwell v. State, 50 Fla. 4, 39 So. 188 (here the objection to the question was useless,
because the question was not shown, and no objection to the answer as such was made by a
motion to strike out).
1906, Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656, 51 Fla, 211, 41 So. 194.
1904, Dunn «. State, 162 Ind. 174, 70 N. E. 521.
1903, State v. Booth, 121 la. 710, 97 N. W. 74.
1904, State v. Lewis, 112 La. 872, 36 So. 788.
1906, Purinton v. Purinton, 101 Me. 250, 63 Atl. 925.
1905, Robinson v. Old Colony St. R. Co., 189 Mass. 594, 76 N. E. 190.
[Note 4; add, under Questions Excluded:]
1904 Ross V. State, 139 Ala. 144, 36 So. 718. 1909, Harris v. Basden, 162 Ala. 367, 50 So.
321. ' 1912, Birmingham R. L. & P. Co. v. Barrett, — Ala. — 60 So. 262 (reviewing prior
cases in this State).
1907, Riddle ». Gibson, 29 D. C. App. 237, 248.
1905, Macon v. Humphries, — Ga. — , 50 S. E. 986.
1904 Georgia N. R. Co. v. Hutchins, 119 Ga. 504, 46 S. E. 659.
16
§20 ADMISSIBILITY IN GENERAL
[Note 4 — contirmed]
1904, Com. V. Bavarian B. Co., — Ky."—, 80 S. W. 772.
1908, Cook V. Enterprise Transp. Co., 197 Mass. 7, 83 N. E. 325.
1908, State v. Page, 212 Mo. 224, 110 S. W. 1057.
1908, Milwaukee G. E. Co. v. Gordon, 37 Mont. 209, 95 Pac. 995 (mining claims).
1904, South Omaha v. Sutliffe, 72 Nebr. 746, 101 N. W. 797.
1913, Smith's Will, 163 N. C. 464, 79 S. E. 977.
1911, Warren v. State, 6 Okl. Cr. 1, 115 Pac. 812.
1910, State v. Goodager, 56 Or. 198, 106 Pac. 638 (noting some exceptions to the rule, e,. g.
on cross-examination).
1905, Union E. Co. v. Hunton, 114 Tenn. 609, 88 S. W. 182 (stating the rule's limitations).
1911, Harris v. Brown, C. C. A., 187 Fed. 6 (stating the modified Federal form of the rule).
1904, Richmond & P. E. R. Co. «. Rubin, 102 Va. 809, 77 S. E. 834.
1904, WiUiams v. Belmont C. & C. Co., 55 W. Va. 84, 46 S. E. 802.
[Note 7; add:]
Campbell says of Lord Mansfield (Lives of the Chief Justices, III, 293) : "In all his time,
there was never a bill of exceptions tendered to his direction." It is worth noting that the
old reason, namely, distrust of the judge's accuracy, which led to the original English statute,
produced recently in Louisiana, in consequence of the overt-act doctrine for a deceased's
threats in homicide, a statute stiffening the practice as to the immediate recording of the
evidence leading to the exception (po«i, § 246, n. 13).
[Note 8, par. 1 ; add, under Accord:]
1905, McCKntock v. Frohlich, 75 Ark. Ill, 86 S. W. 1001.
1905, Spring Valley Coal Co. v. Chiaventone, 214 111. 314, 73 N. E. 420.
1905, Storer v. Markley, 164 Ind. 635, 73 N. E. 1081.
1903, Glaser v. Glaaer, 13 Okl. 389, 74 Pac. 944.
1911, James v. Jackson, 30 Okl. 190, 120 Pac. 288.
1904, Schouweiler v. McCauU, 18 S. D. 70, 99 N. W. 95. 1905, Foss v. Van Wagenen, 20
S. D. 39, 104 N. W. 605.
See also the following : 1904, Chicago & E. I. R. Co. v. Schmitz, 211 111. 446, 71 N. E.
1050 (motion overruled must be excepted to, etc.).
So, too, in any other form of carrying the case higher, the specific errors relied upon must
be mentioned : 1905, Barker v. State, 73 Nebr. 469, 103 N. W. 71 (petition of error).
[Note 8 ; under Contra, add :]
1908, Yarber v. Chicago &_A. R. Co., 235 111. 589, 85 N. E. 928 (overruling the above cases ;
Dunn, J., in a learned opiiiion, reviews the history of the Illinois practice, distinguishing
and repudiating various cases, and codifying the declared rule as follows : "[1] Decisions
of the Court made . . . upon instructions, objections to evidence, or other matters of law
arising in the cause, which have been incorporated in a bill of exceptions, may be assigned
for error and reviewed by an appellate court mthout any motion for a new trial. [2] They are
not waived by, making a motion for a new trial if such motion is submitted mthout any
points stated in writing. [3] But if a motion is made for a new trial and the grounds
thereof are stated in writing, the party is limited to those reasons, and all other errors are
deemed to have been waived. ... [4] The exceptions taken to the decision of the Court
in these particulars ... are available to the appellant, whether exception was taken to the
order overriding the motion for a new trial or not").
§ 21. New Trial for Erroneous Ruling.
[Note 5 ; add, at the end :]
1905, McClelland v. BuUis, 34 Colo. 69, 81 Pac. 771 (opinion by Bailey, J., collecting the
authorities).
16
ADMISSIBILITY IN GENERAL §21
[Note 5 — contimted\ ,•
1904, Heyman v. Heyman, 210 111. 524, 71 N. E. 591.'
1904, Young «. Valentine, 177 N. Y. 347, 69 N. E. 643.
1909, Walston v. Allen, 82 Vt. 549, 74 Atl. 225.
So, too, for a judge sitting mthout a jury : 1905, Kreiling v. Northrup, 215 111. 195, 74
N. E. 123 ("The rule is that no improper or immaterial evidence will be presumed to have
influenced the Court in reaching a decision, where there is sufficient proper evidence to justify
the judgment").
1907, McCready v. Crane, 74 Kan. 710, 88 Pac. 748.
1904, Mankato Mills Co. v. Willard, 94 Minn. 160, 102 N. W. 202.
1904, Dennison v. Christian, 72 Nebr. 703, 101 N. W. 1045.
1905, State v. Harris, 14 N. D. 501, 105 N. W. 621.
1904, Godfrey v. Faust, 18 S. D. 567, 101 N. W. 718. 1905, Godfrey v. Faust, 20 S. D. 203,
105 N. W. 460 (local rule revised in statement). ^
[Note 10; add:]
In the following opinions good statements of the rule are found ; it remains only for these
Courts to be consistent with themselves in constantly observing the spirit of these rulings :
Connectieut: 1903, Munroe v. Hartford St. R. Co., 76 Conn. 201, 56 Atl. 498, per
Hamersley, J.
Idaho: 1904, State v. Levy, 9 Ida. 483, 75 Pac. 227.
Illinois: 1908, Greinke v. Chicago City R. Co., 234 111. 564, 85 N. E., 327 (declines to
disturb a verdict which had been "clearly established by other competent evidence").
Indiana: 1907, Sanderson v. State, 169 Ind. 301, 82 N. E. 525.
Iowa: 1906, Wiltsey's Will, 135 la. 430, 109 N. W. 776 ("We are not justified in re-
versing a case because of the improper admission of evidence, where the result could not
have been different had such evidence been excluded").
Maryland : 1904, Joseph Bros. Co. v. Schonthal I. & S. Co., 99 Md. 382, 58 Atl. 205 (good
statement by McSherry, C. J.).
Michigan: 1891, People ■». Neumann, 85 Mich. 98, 48 N. W. 290.
Minnesota: 1903, State v. Nelson, 91 Minn. 143, 97 N. W. 652.
1905, State v. Crawford, 96 Minn. 95, 104 N. W. 822 (in which Jaggard, J., for the Court,
fully and emphatically proclaims the adherence of this Court to the orthodox and enlight-
ened rule). 1905, State v. WilUams, 96 id. 351, 105 N. W. 265 (Start, C. J., explaining the
rule laid down in the preceding cases).
Missouri: 1905, Swope v. Ward, 185 Mo. 316, 84 S. W. 895 (under Rev. St. 1899, § 865).
1906, State v. Barrington, 198 Mo. 23, 95 S. W. 235 (showing a healthy attitude on this
subject).
1906, State v. Feeley, 194 id. 300, 92 S. W. 663.
1904, Alexander v. Wade, 106 Mo. App. 141, 80 S. W. 19 (Bland, P. J. : "Whether or not
there was error committed in the admission of evidence, the error will not avail appellant,
for the reason that under the competent evidence, ... the judgment is clearly for the right
party and should not be reversed").
1904, Hanna v. Orient Ins. Co., 109 id. 152, 82 S. W. 1115.
Montana: 1906, State v. Fuller, 34 Mont. 12, 85 Pac. 369.
Nevada: State v. Williams, 28 Nev. 395, 82 Pac. 353.
North Dakota: 1910, State v. Staber, 20 N. D. 545, 129 N. W. 104 (different phras-
ings considered).
Rhode Island: One of the broadest and best statements of the rule is as follows : "Where
the evidence is such that a new trial would be of no avail, it will be denied, although there
may have been error in the trial" ; per Stiness, C. J., in Clarke v. N. Y. N. H. & H. R. Co.,
26 R. I. 59, 58 Atl. 245.
.South Dakota: 1904, Fowler v. Iowa Land Co., 18 S. D. 131, 99 N. W. 1095 ("Where
there is suflBcient evidence to sustain the judgment, independently of the evidence
17
§21 ADMISSIBILITY IN GENERAL
[Note 10 — contimted]
objected to and admitted, the admission of such evidence does not constitute reversible
error").
Tennessee: The following phrasing of the rule, under Tenn. Code, § 6351, would be the
ideal one, if the last two clauses were omitted :
1904, Pennsylvania R. Co. v. Naive, 112 Tenn. 239, 79 S. W. 124 (Neil, J. : "The rule has
been laid down by this Court that there can be no reversal for error in the charge of the
Court below, where we can clearly see that a correct result was reached by the jury, and
that another trial with a proper charge could not change that result. The same rule must
obtain where evidence was improperly excluded in the Court below, if it be perfectly apparent
to this Court that the result was the correct one, that the excluded evidence could not have
changed the result, and that upon a new trial . . . the jury could not fail to reach the same
conclusion").
West Virginia: 1905, Tucker v. Colonial F. Ins. Co., 58 W. Va. 30, 51 S. E. 86 ("If it
appear to the Court on the, whole matter that the' verdict ought to be affirmed," no new
trial will be granted).
The soundest formula of decision, as Courts might as well concede, is the following,
phrased by the greatest living American criminal judge, Furman, P. J. : "As the verdict
rendered is the only one which could have been rendered by the jury, we cannot say that the
appellant has been deprived of any substantial right to his injury" (1912, Mitchell v. State,
7 Okl. Cr. 563, 124 Pac. 1112).
[Note 12; add:]
The following rulings are to be numbered among those which still look backward : that
some of these Courts have in the meantime improved their attitude is quite possible.
Alabama : 1904, Southern R. Co. v. Morris, 149 Ala. 672, 42 So. 19 (on several exceptions,
the only one sustained was that, upon a proper question to a witness as to the defendant's
payment of his expenses, the witness' answer showed that no more had been paid than was
due ; solely for failing to strike out this answer, the verdict for the plaintiff was reversed
and a new trial ordered ; this was a plain failure of justice).
1905, Shelton v. State, ib., 42 So. 30 (murder; out of two dozen exceptions, the verdict
was set aside solely because of a charge upon confessions, the defendant's statement being
finically construed not to be a confession).
1905, Smith v. State, 142 Ala. 14, 39 So. 329 (on some thirty exceptions, and twenty refused
charges, the judgment was reversed solely because of an error in refusing to admit the details
of the deceased's intoxication).
1906, Jacobs v. State, — Ala. — , 42 So. 70 (murder ; out of a dozen exceptions, the only
one sustained was to a casual phrase of the judge amounting to a charge upon the evidence ;
and for this the verdict was set aside).
California: 1903, Rulofson v. Billings, 140 Cal. 452, 74 Pac. 35 ("A party cannot, after
insisting upon the admission of improper evidence, over an objection to its admissibility,
defend his course by contending that the error was Jiarmless. . . . This .Court in such
cases sits only as a Court for the correction of errors. The judgment upon the facts, to
which every litigant is entitled as of right absolute, is the judgment of the trial Court."
Here is indeed frankly the Trilogy of Technicalism, which may be thus restated : "1. It
is a crime to violate by mistake the rules of evidence ; the penalty is the forfeiture of one's
just rights and estates. 2. The Supreme Court is not a real Court of Justice, but only a
Referee to decide Bets on Rules of Evidence. 3. Every person has an Absolute Right to
profit unjustly by the trial Court's mistakes in deciding such Bets").
1904, People v. Creeks, 141 Cal. 532, 75 Pac. 101.
The new Court of Appeal seemed to be making a better start in enforcing the rational doctrme :
1905, Greene v. Murdock, 1 Cal. App. 136, 81 Pac. 993 ; and a marked tiu-n for the better
was for a while observable in the Supreme Court, in People v. Weber, 86 Cal. 671, 86 Pac.
671 (1906) ; Dolbeer's Estate, ib., 86 Pac. 695 (1906).
18
ADMISSIBILITY IN GENERAL § 21
[Note 12 — continued\
Then came a relapse, illustrated by the following case :
1911, People V. Coffey, 161 Cal. 433, 119 Pac. 901 (another of the Ruef-Gallagher trolley-
system bribery cases; the reversal was grounded on the lack of corroboration of an ac-
complice ; the definition of an accomplice was expounded learnedly and lengthily, and a
very pretty and scientific distinction was laid down, which however was not the one used
by the trial judge ; thus was fatal error committed ; in other words, the credibility, man to
man, on all the circumstances of the case, of this witness and thus the safety of the verdict
as founded on fact, was made to turn on a subtle discussion of criminal theory ; it might just
as well have been made to turn on the authenticity of the Pentateuch).
Then came retribution, in^the shape of a Constitutional Amendment of 1911 (Art. 6,
§ 4|), a humiliating rebuke to all Courts of Justice, forbidding new trials except for "mis-
carriage of justice."
Slowly but manfully and sincerely this Court is now accepting the spirit of the Amend-
ment:
1913, People v. O'Bryan, 165 Cal. 55, 130 Pac. 1042 (here the Court, speaking through Sloss,
J., call attention to the constitutional amendment of 1911 forbidding new trials for errors,
etc., unless involving "miscarriage of justice"; affirm that it was meant to remedy the
unsatisfactory doctrine of "reversible error" ; and proceed to apply it wholeheartedly and
sensibly, on the canon, "If it appears to our satisfaction that the result was just, and that
it would have been reached if the error had not been committed, a new trial is not to be
ordered"; three judges, in a minority opinion, show a hesitation, erroneously beUeving
that a constitutional principle was involved).
1913, People v. Fleming, 166 Cal. 357, 136 Pac. 291 (the majority ordered a new trial, for
erroneous use of evidence, "in the interests of justice"; but Chief Justice Beatty, non-
concurring, very properly pointed out that the term "miscarriage of justice" (Const. Art. 6,
§ 4^, recently added) can mean, ' ' only the correlation of such miscarriage in cases of acquittal,
viz. the conviction of a person who is innocent."
See the article by Professor A. M. Kidd, "Criminal Law : Miscarriage of Justice : Con-
stitutional Amendment" (California Law Review, I, 375).
Florida: 1910, White v. State, 59 Fla. 53, 52 So. 805 (typical case to show modern quib-
bling spirit of lawyers trying the case).
Georgia: 1906, Young v. State, 125 Ga. 584, 54 S. E. 82 (third conviction for murder;
the first two were set aside for minor technicalities ; this third was set aside by a majority,
because the trial judge erroneously assumed that the defendant did not dispute the death
of the deceased ; in fact, the victim assaulted was riddled with shot "from about the middle,"
and at the time of this ruling his corpse had been putrefying in the graveyard for two years ;
yet the trial Court, in withdrawing that issue from the consideration of the jury, is deemed
to have committed a fatal error; this kind of ruling is itseK a putrefaction of justice).
Illinma: 1913, People v. Newman, 261 111. 11, 103 N. E. 589 (here the Court relapses to
the mechanical theory; character-evidence erroneously admitted leads to a reversal,
regardless of "what we may think of the guilt or innocence of the plaintiff in error").
Iowa: A rich piece of judicial artificiality, as it contrasts with natural justice, is found in
State V. Wheeler, 129 la. 100, 105 N. W. 374 (1905), and State v. Brown, 106 N. W. 379
(1906) ; in the former case, a verdict of guilty was found against one Wheeler, for throwing
acid in the eyes of Mrs. R., but the verdict was set aside for improper evidence ; in the
latter case, the jury found one Brown guilty of instigating the criminal act of Wheeler as
above, and this verdict was affirmed by the Supreme Court, with the incidental statement
that "there is ample evidence in the case to establish Wheeler's guilt." I. e. Wheeler was
not guilty when he was himself tried, yet he was guilty when Brown was tried ! Of course
there is a legal twist of thought by which this can be easily explained. But the fact remains
. that Justice was bungled here, and that it was bungled because the judges are slaves of a
machine-like method and are not bold enough as Justiciars to put two such cases together
and solve them rationally and sensibly.
19
§21 ADMISSIBILITY IN GENERAL
[Note 12 — continued]
Kansas: 1905, State v. Miller, 71 Kan. 200, 80 Pac. 51 (rape under age; the Court
overruled three exceptions, but sustained the fourth and granted a new trial solely because
at the trial was admitted a priest's copy, brought over by the family from Russia, of an ex-
tract of the parish-register showing the girl's age ; the girl herself and both her parents
having testified to her age, and the certificate being merely cumulative ; the excuse is made,
"How much weight may have been given by the jury, we are unable to say, etc.").
1906, Federal B. Co. v. Reeves, 73 Kan. 107, 84 Pac. 560 (among numerous alleged errors,
the Court declared many of the objections "frivolous," and found only one error, and even
this was by the better rule not an error ; without the slightest consideration whether it could
or should have affected the verdict, a new trial was ordered.
Kentucky: 1904, Marks v. Hardy's Adm'r, 117 Ky. 663, 78 S. W. 864, 1105. ^
1905, Whitt ». Com., — Ky. — , 84 S. W. 340 (reversed for a single error in evidence).
Louisiana: 1906, State v. Rugero, 117 La. 1040, 42 So. 495 (verdict of manslaughter set
aside solely because, on the defendant having read his affidavit for continuance on account
of a witness whom he could secure "in due time for trial at this term," the prosecuting
attorney read the sheriff's return for the witness as not found because out of the State in
Texas ; the defendant's affidavit being by fiction of law deemed conclusive, this return of
the sheriff was treated as reflecting fatally upon the defendant's veracity ; the prosecution
having argued that this error was trivial, the Supreme Court warmly retorts, "Why jeopar-
dize the restilt of a trial by insisting on evidence so utterly insignificant ? "
Michigan: 1905, Seymour v. Bruske, 140 Mich. 644, 103 N. W. 613 (there was one error
in the admission of evidence ; reversed ; "The testimony - . . impresses us with the idea
that the jury was not in fact prejudiced by this evidence. We cannot say, however, that
it was not prejudicial. We can say that it was incompetent." And the plain-minded
observer can say that such language is that of the helpless slave of a legal treadmill, not that
of an administrator of justice).
Missouri: 1904, State v. Schnettler, 181 Mo. 173, 79 S. W. 1123 (St. Louis bribery case;
reversed on a technicality).
The preposterously illogical result of the heresy often is that the greater the probative
value of the erroneously admitted evidence, the morq necessary to order a new trial; e. g.,
in Redmon v. MetropoUtan St. R. Co., 185 Mo. 1, 84 S. W. 26, the Court, having declared
a conductor's statement, made just after the accident, to have been erroneously admitted,
proceeds : "Coming as it did from the conductor of the train, it was calculated to carry
conviction that the cause of the accident was, etc.," and therefore "the admission of this
evidence was reversible error." A system of proof pretending to call itself rational should
not be found employing such a parody on reasoning. In the above opinion, the new trial
was ordered for that error alone.
Nebraska: 1906, McCook v. McAdams, 76 Nebr. 1, 106 N. W. 988 (a very pretty piece of
machine-made justice ; after two trials, a vferdict for the plaintiff was reversed solely because
of testimony to the total damage to the goods, the objections being, first, that it was an
opinion, and secondly that it was based in part on cost price).
New Hampshire: 1903, Pattee v. Whitcomb, 72 N. H. 249, 56 Atl. 459 (new trial for a
single error, in excluding, cumulative opinion in evidence).
1912, Holman v. Boston & M. R. Co., 76 N. H. 496, 84 Atl. 979 (this opinion shows that no
Court, even in the State once honored by the tradition of the great Charles Doe, is to-day
advanced enough not to need censure for the present fault).
North Carolina : 1904, State v. Parker, 134 N. C. 209, 46 S. E. 511 (corrdborating a child
under ten in rape, by her prior statements ; the judge's failure to charge as to the precise
nature of the corroboration, though no request was made of him by defendant's counsel,
and no objection taken, held ground for a new trial ; a second trial also having been akeady
ordered for a mere technicality; Clark, C. J., diss.).
Oklahoma: 1912, Landon v. Morehead, 34 Okl. 701, 126 Pac. 1027 (this is an extreme
example of the sporting theory of litigation ; a document being proved by copy, and the
20
ADMISSIBILITY IN GENERAL §21
[Note 12 — continiied\
evidence of opponent's possession etc. being inadequate, an affidavit filed after verdict
and showing the needed fact, was held not to obviate a reversal; for "the making of this
subsequent affidavit could not cure the Court's error committed at the trial"; thus the
Supreme Court rules exactly as if it were a question of whist).
Oregon: 1904, Carter v. Wakeman, 45 Or. 427, 78 Pac. 362 ("When it is manifest that an
error has been committed, prejudice will be presumed").
Pennsylvania: 1908, Com. v. Gate, 220 Pa. 138, 69 Atl. 322 (judgment set aside solely
because of a slight verbal inaccuracy in a charge on good character ; "we cannot say no
harm was done appellant in this respect, although the case in other respects was tried with
exemplary care, and the rulings of the learned judge were fair and impartial"; here the rules
of the game must be obeyed strictly, on penalty of "tries over again"). .
South Carolina: 1906, State v. Rowell, 75 S. C. 494, 66 S. E. 23 (murder; out of twelve
errors, only one was sustained, and that was a quibble over the trial judge's wording of his
instruction as to self-defence ; for this alone a new trial was ordered, though the jury had
only condemned him to five years' irttprisonment for manslaughter on facts which made
this a paltry penalty).
Texas: 1903, HoUoway v. State, 45 Tex. Cr. 303, 77 S. W. 14.
1906, Chancey v. State, 50 Tex. Cr. 85, 96 S. W. 12 (the judge remarked, excluding evidence
of a witness' intoxication, that it he was drunk his testimony "would not amount to much" ;
it was held that this might apply to the defendant, who was also drunk, and on this ground
alone the judgment was set aside !).
1905, Watkins L. M. Co. v. Campbell, 98 Tex. 372, 84 S. W. 424 (reversed for a single error
in admitting cumulative evidence ; the same pitiable non possumus recurs, "It cannot be
known that the jiiry was not influenced, etc.").
1903, Texas & P. R. Co. v. Goggin, 33 Tex. Civ. App. 667, 77 S. W. 1053.
United States: 1905, Sanborn, J., in Union Pacific R. Co. v. Field, 137 Fed. 14, C. C. A. ;
1905, National Biscuit Co. v. Nolan, 138 Fed. 6, C. C. A. (Philips, J. : "Error presumptively
works a prejudice to the party against whom it was committed").
1906, Sparks v. Terr., 146 Fed. 371, C. C. A. (the admission of irrelevant evidence "is a
violation of a legal right, and it constitutes fatal error").
Utah: The following series of rulings in this State is commended to the judgment of the
profession ; whether the author's comments seem justifiable will of course depend somewhat
upon the standard of attainable justice applied by the reader ; but the Oklahoma Court of
Criminal Appeal has shown that the standard attainable is very high :
1905, State v. Shockley, 29 Utah 25, 80 Pac. 865 (this is perhaps the most glaring ex-
ample of our modern failures of justice to be found in the records of a decade ; the defend-
ant, who had in July, 1903, three times robbed street cars in Salt Lake City, was charged
with the murder of two passengers in a fourth attempted robbery of a car in January, 1904 ;
the defendant took the stand and confessed all the facts, endeavoring to make exculpation
by declaring that he had only intended "to try to hit his arm" ; the verdict was reversed
by the majority, solely on two erroneous rjiluigs of evidence, first, because the claim of
witness' privilege was required to be made by the defendant himself and not his counsel, and
secondly, because of improper cross-examination to past misconduct; not only were the
trial Court's rulings easily supportable on orthodox principles, but the Supreme Court
majority opinion gave not even one word's consideration to the question whether the alleged
errors should have affected the verdict ; on a perusal of the testimony of the defendant, full
of the self-justifying ethics of a reckless desperado, it is hard to say whether one is more
aghast at the cold-bloodedness of the robber in taking the lives of his innocent victims,
or the cold-bloodedness of the Supreme Court in mechanically grinding out a reversal with-
out a regard to the demands of justice).
1910, State v. Vance, 38 Utah 1, 110 Pac. 434 (strict muzzling rule here applied, to limit cross-
examination to matters testified to on the direct examination ; the Shockley case reviewed
and approved ; the above criticism on that case, as well as the further criticism, post, § 2276,
21
§21 ADMISSIBILITY IN GENERAL
JNote 12 — continiied\
n. 5j noticed and replied to ; the Court's reply points out the exaggeration in the statement,
post, § 2276, n. 5, that the Shockley decision " helped to set free a self-confessed villain,"
inasmuch as the defendant was on the ensuing trial found guilty and sentenced to life im-
prisonment, the learned Court evidently believing that all's well that ends well ; the
present writer regrets that his criticisms should have seemed to carry a personal reflection,
which was not and could not have been intended, upon the able jurists of this Court, and the
honor done by their notice of the comment is fully appreciated ; the same critic will only re-
join, respectfully, (1) that his comments were assiu-edly not "insincere," as the learned Coviit
alleges ; (2) that he still believes that the rule of cross-examination laid down was too strict
and unpractical ; (3) that, considering the details of the crime in question, the opinion's
calm self-restraint on the subject is still deemed to be "cold-blooded," if we measure it by
the ideal qualities of a supreme judge set on high to sep that the wicked are punished and
the innocent are protected ; (4) in so far as the learned Court's reply attributes to the
present critic the supposedly absurd view that "when one accused of crime in effect confesses
the acts constituting the offence, no error [in the admission of evidence], however gross, can
be prejudicial in his case," it must be confessed that this is indeed what the present writer
maintains and will ever maintain ; (5) but in so far as the learned Court's reply intimates
that the "intemperate" tenor of the criticism is due to the fact that such writers "revel
in mere abstract theories,," this explanation is respectfully doubted ; and as a specimen of
similar language from the pen of a chief justice of an eminent and contemporary court of
criminal appeal, ruling upon a similar point, the following may serve to show that the the-
oretical writers are not intemperately ahead of the times as interpreted by ofher than Utah
judges ; "To reverse a conviction where a defendant is clearly guilty, upon a mere technical
error of the trial Court, which could not have injured the defendant, would be a prostitution
of reason, an outrage upon justice, and an act of treason to the law-abiding people of the
State" : Furman, P. J., in White v. State, 1910, 4 Okl. Cr. App. 143, 111 Pac. 1010).
1911, State V. Thome, 39 Utah 208, 117 Pac. 58 (this is another "cold-blooded" case ; the de-
fendant was charged with murder while burglarizing ; he fully admitted the burglary and the
killing and even by his own story the most to be said for him was that while the deceased,
the owner of the store, was backing away with his hands up as commanded, the defendant
"poked" or "punched" him in the ribs, and the gun "went off," and that he did not intend
to kill the man ; the Court's opinion expressly concedes that "upon the undisputed evidence
in the case he is shown guilty of murder in the first degree," but reverses the judgment
because, partly, of an erroneous cross-examination of the accused to former crimes (which
crimes we here may believe to have been committed, inasmuch as the defendant did not deny
them but claimed the privilege against self-incrimination) ; and since this cross-examination
"had a tendency" to deter the jury from the recommendation to life imprisonment which
they might have made, hence the reversal ; the result then is that a professional thug who
came to a peaceable citizen's store to rob the till, and on the citizen's submission meanly
killed him, is tenderly protected by the Court because the jury might have recommended
him to mercy, but the interests of the peaceable citizen and his bereaved family, to whom the
thug showed no mercy, are not regarded as at all affecting criminal law administration ;
as for the opinion's further ground of reversal, viz. the en-oneous language of the trial Court
when informing the jury of their power to recommend life imprisonment instead of death,
— that piece of weird logomachy, to be appreciated, needs to be perused in full ; we confess
we simply cannot understand the mental attitude which produces it ; ah 1 well, "thou little
thinkest," said the great lawyer John Selden, "what a little foolery governs the world";
but after all, it is perhaps only an example of Nature's inexorable law of compensation, as
Emerson expounded it ; for if in England, till a century ago, a man was hanged for stealing
five shillings to buy food for his family, so now in Utah, for a space, a man caxmot be hanged
even for the most cowardly and contemptible murder).
1912, State v. Romeo, — Utah — , 128 Pac. 530 (in this opinion, the attitude toward the
present question shows a change; the case was another one of brutal and cruel murder
22
ADMISSIBILITY IN GENERAL - §21
[Note 12 — continued]
"with robbery ; there was an error in the phraseology of the trial judge's charge upon the
jury's power to recommend less than the death penalty ; the opinion terms the error "more
technical than substantial," and proceeds : "A charge with the objectionable features
ehminated would not have produced a different result ").
Vermont: 1908, Holman v. Edson, 81 Vt. 49, 69 Atl. 143 ("an improper answer by a wit-
ness to a proper question is not ground of error if given without fault of the Court or examin-
ing counsel," and when a party is the witness, "fault" is presumed; here is the perverted
notion that a trial is to be had over again as a " penalty" for a " fault," — just as a misdeal
in cards vitiates the hand ; here a new trial was granted solely because the plaintiff when
testifying made one answer based on hearsay).
Washington: 1912, State v. Stone, 66 Wash. 625, 120 Pac. 76 (a vicious instance of the
party being entitled to exact an observance of the minutest rules of the game, regardless of
his guilt).
[Note 13; add:]
Jaggard, J., in State v. Crawford, 96 Minn. 95, 104 N. W. 822.
[Note 15, p. 76; add:]
New York. In this State there has been vacillating progress towards liberalism. In
criminal cases (e. g. 1904, People v. Bonier,179 N. Y. 315, 72 N. E. 226) the Court had ob-
served the old rule that "a presumption of injury co?icZM*i»eZ2/ ame« whenever it is apparent
that the erroneous ruling may have affected the verdict" ; yet in an opinion filed on the very
same day (People v. Davey, Nov. 15, 1904, 179 id. 345, 72 N. E. 244) the same Court asserted
that "it has become one of the accepted maxims of our jurisprudence that appellate courts
will not be astute to find mere technical errors upon which to reverse judgments" ; in the
Davey case, the opinion does not make a pretence of considering whether the conviction
was actually just upon the evidence ; its own condemnation is furnished by the language of
the same Court in an opinion written by the very same judge, filed one month later (People
i>. Rimieri, 180 N. Y. 163, 72 N. E. 1002), and ruling the opposite way upon almost precisely
the same facts (cited post, § 1157, n. 3), in which the proper criticism is made that "to hold
that a jury, sitting in judgment in a case involving a human life, would be influenced by
such an incident to render a verdict not warranted by the evidence, would be an unjust
imputation on the system").
1906, People v. Cascone, 185 N. Y. 317, 78 N. E. 287 (the phrase "reversible error" repeated).
Mr. (Assistant District Attorney) Arthur Train, in his valuable book "The Prisoner at the
Bar" (1906, p. 339), while taking an optimistic view of the present practice in the New York
Court of Appeals, adds his weighty opinion as to the harm done by reversals, however rare,
on trivial technicalities.
In civil cases the Court promulgates an enlightened principle : 1906, Hindley v. Manhattan
R. Co., 185 N. Y. 335, 78 N. E. 276 ("If no reasonable view of all the evidence in the record
would permit a conclusion favorable to the defendants on that issue, it is clear that the
erroneous rulings [of admission for the' plaintiffs], did no harm, and that the judgment
[for the plaintiffs] should be aflSrmed" ; this is by the same judge who wrote the opinion in
People V. Cascone, supra).
In criminal cases, a turn for the good has been observable.
1908, People v. Gillette, 191 N. Y. 107, 83 N. E. 680 (murder).
[Note 16; add:]
This statute seems to have been followed by an improvement : 1904, State v. Simon, 71
N. J. L. 142, 58 Atl. 107.
So too in Canada : The majority of the Supreme Court of Canada still wear the shackles of
the Exchequer rule ; not even the legislative fiat of Crim. Code § 1019 has yet been able to free
them : 1911, Allen v. The King, 440 Can. Sup. 331 (Fitzpatrick, C. J., Duff, and Anglin,
23
§21 ADMISSIBILITY IN GENERAL
[Note 16 — contmuedl
J. J., representing that attitude, as against Davies and Iddington, J. J., diss. ; in this case,
"an acquittal . . . would have shocked every sensible man who had heard the evidence,"
and yet for one trifling error in admitting evidence the judgment was set aside).
For California, see Note 12, ante.
Of the various statutes, the Ohio phrasing seems the best :
Fla. St. 1911, c. 6223, p. 193, May 26 (no new trial for erroneous rulings except for "a mis-
carriage of justice").
Oh. St. 1911, p. 132, May 18 (upon review of a judgment, the Court shall certify "whether
or not in its opinion substantial justice has been done to the party complaining, as shown
by the record of the proceedings and judgment under review." If certifjdng in the affirma-
tive, all errors shall be "deemed not prejudicial to the party complaining," and judgment
shall be affirmed, or modified "if in the opinion of such reviewing court a modification
thereof will do more complete justice to the party complaining."
[Note 17; add:]
the Code provision continues to be liberally construed in this State :
1909, Hargis v. Com., — Ky. — , 123 S. W. 239.
[Note 18; add:]
1912, Young V. Corrigan, D. C. N. D. Oh.,208 Fed. 431 (above text approved by Killits, J.).
§ 26. Circiunstantial and Testimonial Evidence ; Relative Value.
[Note 11; add:]
1910, State v. Marren, 17 la. 766, 107 Pac. 993 (propriety of giving a charge on this subject).
1905, State v. Foster, 14 N. D. 561, 105 N. W. 938 (whether an instruction must be given).
1909, Spick V. State, 140 Wis. 104, 121 N. W. 664 (excellent opinion by Marshall, J.).
The exposition of this subject which has now become the classical one is that of Furman,
P. J., in Ex parte Jeffries, 1912, 7 Okl. Cr. 544, 124 Pac. 924. All laymen would profit
by reading it.
§ 29. Relevancy, distinguished from Weight.
[Note 1; add:]
1905, McSherry, C. J., in Bowman v. Little, 101 Md. 273, 61 Atl. 223, 1084 (supplementary
opinion).
§ 38. Circumstantial Evidence ; Degree of Probative Value required.
[Note 1; add:]
1906, Johnson v. Atlantic C. L. R. Co., 140 N. C. 574, 53 S. E. 362 (good illustration).
1906, United States F. & G. Co. v. Des Moines Nat'l Bank, 145 Fed. 273, 279, C. C. A.
§ 41. Circimistantial Evidence proved by the same Kind.
[Note 2; add:]
1904, State v. Kelly, 77 Conn. 266, 58 Atl. 705 (murder ; deceased's despondency, as evi-
dence of a plan of suicide, excluded).
1911, Roberts v. State, 2 Boyce Del. 385, 79 Atl. 396 (not decided).
1906, Kevern v. People, 224 111. 170, 79 N. E. 574 (rape).
1913, Dowell V. State, — Ind. — , 101 N. E. 815 (an absurd instance of applying this
doctrine to a case in which the only real doubt was whether the witness told the truth ;
24
ADMISSIBILITY IN GENERAL §42
[Note 2 — contimiedl
bottles of whiskey alleged to have been sold illegally by the defendant to A, who delivered
them to B, who produced them on the trial).
1909, Swearingen v. Wabash R. Co., 221 Mo. 644, 120 S. W. 773.
1912, People v. Razezicz, 206 N. Y. 249, 99 N. E. 557 (murder by a bomb, the present
theory applied to an inference from the prior explosion of another bomb to the defendant's
use of explosives; but the Court also states its attitude in the correct form that "it is
unsafe to rely upon that fact as the controlling fact to establish the defendant's guilt").
1910, State v. Lem Woon, 57 Or. 482, 112 Pac. 427, per King, J., di?s.
1904, Taylor v. General Ace. Ins. Co.,' 208 Pa. 439, 57 Atl. 830.
1903, East Tennessee & W. N. C. R. Co. v. Lindamood, 111 Tenn. 457, 78 S. W. 99.
1903, Cunard S. S. Co. v. Kelley, 126 Fed. 610, 614, C. C. A. (U. S. v. Ross followed ; here,
as to an inference of knowledge of marks on goods).
1914, Fadden v. McKinney, — Vt. — , 89 Atl. 351 (trespass).
1909, Wilkie v. ChehaUs Co. L. & T. Co., 55 Wash. 324, 104 Pac. 616 (an instance of another
horse's fright at a pile of raw meat, excluded, by some fancied connection with the present
principle).
1911, State V. Brache, 63 Wash. 396, 115 Pac. 853, semble.
Another variety of the fallacy is the following : Or. Ballinger & C.'s Compilation, § 785
("An inference must be founded on a fact legally proved ").
1909, State v. Hembree, 54 Or. 463, 103 Pac. 1008 (wife-murder ; the wife's discovery of
the defendant's incest with the daughter being alleged as the motive, and the testimony to
the incest not being "proved" to the Court's satisfaction, the motive-inference was held im-
proper and hence the incest-testimony; unsound, (1) because the Court concedes that
motive-proof is not indispensable, (2) because the Code provision merely means that the
inference must be based on an evidenced fact as distinguished from a fact merely guessed
at.
[Note 4; add:]
1913, State v. Fiore, — N. J. L. — , 88 Atl. 1039 (citing the, text above).
For an acute analysis of this fallacy, and a demonstration of its unsoundness, with cita-
tions of additional rulings involving it, see an article "Presumptions built on Presumptions,"
by Professor Wm. Trickett, of the Dickinson School of Law, in The Forum, X, 123, March,
1906 (Carlisle, Pa.).
§ 42. Irrelevancy and Multifariousness, distinguished.
[Text, p. 114; add, after the other quotations :]
1881, Ruffin, J., in State v. Brantley, 84 N. C. 766 : "Amongst other hazards and incon-
veniences, it was found that to allow evidence to be given touching every collateral matter
that could be supposed, however remotely, to throw any light upon the main fact sought
to be established, had the effect to render trials complicated, and to confuse and mislead,
rather than enlighten, the juries, and at the same time to surprise the party on trial, who
could not come prepared to disprove every possible circumstance, but only such as he might
suppose to be germane and material. And therefore the main rule was adopted of restrict-
ing the inquiry to such facts as, though collateral to the matter at issue, had a visible,
reasonable connection with it ; not such a connection as would go to show that the two
facts, the collateral one and the main one, sometimes — or, indeed, often — go together,
but such as would show that they most usually do so."
1842, Edgar Foe, "The Mystery of Marie Roget." "I would here observe that very much
of what is rejected as evidence by a Court is the very best of evidence to the intellect. For
the Court, guided itself by the general principles of Evidence — the recognized and booked
principles — is averse from swerving at particular instances. And this steadfast adherence
to principle, with rigorous disregard of the conflicting exception, is a sure mode of attaining
25
§ 42 I CIRCUMSTANTIAL EVIDENCE
[Text, p. 114 — condnuedl
the maximum of attainable truth, in any long sequence of time. The practice, in mass, is
therefore philosophical. But it is not the less certain that it engenders vast individual
§ 56. Defendant's Good Character, admissible.
[Note 1; add:]
1904, Maston v. State, 83 Miss. 647, 36 So. 70.
1906, Powers v. State, 117 Tenn. 363, 97 S. W. 815 (and upon all parts of the defendant's
conduct).
[Note 2; add:] ^
1904, Maston v. State, 83 Miss. 647, 36 So. 70.
[Note 3; add:]
1909, Dickenson v. State> 3 Okl. Cr. 151, 104 Pac. 923.
[Note 4; add:]
1910, State v. Alderman, 83 Conn. 597, 78 Atl. 331.
1911, State V. Brauneis, 84 Conn. 222, 79 Atl. 70.
1905, Nelms v. State, 123 Ga. 575, 51 S. E. 588.
1913, Taylor v. State, — Ga. App. — , 79 S. E. 924.
1907, Miller v. People, 229 111. 376, 82 N. E. 391.
1910, Hundley v. State, — Ind. — •, 91 N. E. 225 (here also to be considered in mitigation).
1904, People v. Bonier, 179 N. Y. 315, 72 N. E. 226.
1911, People V. Conrow, 200 N. Y. 356, 93 N. E. 943 (word-juggling).
1913, State v. Hare, 87 Oh. 204, 100 N. E. 825.
1908, Com. V. Gate, 220 Pa. 138, 69. Atl. 322. 1910, Com. «>. Aston, 227 Pa. 106, 75 Atl.
1017.
1910, Searway v. U. S., 8th C. C. A., 184 Fed. 716.
1911, State V. Brown, — Utah — , 115 Pac. 994 (collecting cases; three separate opinions
filed ; the impression is that, as said above, the discussion of this subject, however learned
and interesting as a logical pursuit, is profitless; for the subtleties of the instruction are
lost on the jury).
1905, Schutz V. State, 125 Wis. 452, 104 N. W. 90.
The following shrewd observation comes down to us from yore : 1664, Turner's Trial,
6 How. St. Tr. 565, 613 : L. C. J. Hyde : "The witnesses he called in point of reputation, —
that I must leave to you [the jury]. I have been here many a fair time. Few men that
come to be questioned but shall have some come and say, 'He is a very honest man, I never
knew any hurt by him.' But is this anything against the evidence of the fact ? "
[Note 6; add:]
1904, Maston v. State, 83 Miss. 647, 36 So. 70 (even where insanity is the defence).
1913, Gilbert v. State, 8 Okl. Cr. 543, 128 Pac. 1100 (manslaughter ; held erroneous to reject
defendant's good character until defendant had testified or- had offered some evidence of self-
defence).
Whether the accused's good character should be presumed is noticed post, § 290.
§ 58. Same : Prosecution may Rebut.
[Note 1; add:]
1908, People v. Hinksman, 192 N. Y. 421 , 85 N. E. 676 (defendant voluntarily took the stand,
and after stating that he was once convicted of larceny, said, "I have been a good boy ever
26
CHARACTER TO EVIDENCE AN ACT § 59
[ Note 1 — continued]
since " ; held that testimony of his bad reputation was not thereby made admissible in
rebuttal; this is decidedly over-strict; Gray, J., diss.).
[Note 2 ; add a new par. :]
Under the Criminal Evidence Act, 1898 (61-2 Vict. c. 36, §1), the question constantly
arises whether the accused who testifies has permitted the prosecution to evidence his bad
character. But the cases are more conveniently considered post, § 196 and § 2276, n. 5.
§ 59. Kind of Character of Accused.
[Note 1 ; add, under Accord :]
1905, Smith v. State, 142 Ala. 14, 39 So. 329 (homicide ; defendant's character for honesty
excluded).
1914, Frank v. State, — Ga. — , 80 S. E. 1016 (murder while attempting rape ; the de-
fendant having put in his general good character, his bad character for lasciviousness was
then shown by the prosecution).
1913, State v. Allen, 23 Ida. 772, 131 Pac. 1112 (but deprecating theoretical strictness in
applying the principle).
1905, Wistrand v. People, 218 111. 323, 75 N. E. 891 (rape; character as a "peaceable and
quiet citizen," excluded).
1907, Harper v. U. S., 7 Ind. Terr. 437, 104 S. W. 673 (false entries ; reputation for "morality
and sobriety," held properly excluded).
1905, State v. Bessa, 115 La. 259, 38 So. 985 (assault with intent; character for honesty and
industry, excluded).
1906, State v. Griggsby, 117 La. 1046, 42 So. 497 (murder ; defendant's character for honesty
and trustworthiness, excluded).
1904, Maston v. State, 83 Miss. 647, 36 So. 70 (murder ; character for "peace or violence,"
and a "peaceable and law-abiding citizen," admitted).
1905, Horton v. State, 84 Miss. 473, 36 So. 1033 (rape ;■ character for peace or violence,
adnjissible).
1904, State v. Brady, 71 N. J. L. 360, 59 Atl. 6 (rape ; defendant's general reputation,
excluded).
1911, Terr. v. Pierce, 16 N. W. 10, 113 Pac. 591 (assault; character for truth and veracity,
excluded).
1907, People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718 (homicide).
1907, Saye v. State, 50 Tex. Cr. 569, 99 S. W. 551 (negligent homicide by a deputy sheriff ;
defendant's character as a cautious and prudent officer, admitted).
1913, Bishop V. State, — Tex. Cr. — , 160 S. W. 705 (seduction; defendant's general char-
acter as a peaceable, law-abiding citizen, not merely as a moral and chaste person, admissible) .
1905, State v. Moyer, 58 W. Va. 146, 52 S. E. 30 (embezzlement ; character for honesty,
admissible).
1909, Harper v. U. S., 8th C. C. A., 170 Fed. 385, 390 (false entry in a bank report ; the de-
fendant's character for "morality and sobriety," excluded).
[Note 1, at the end ; add:]
Thus, the prosecution's rebutting repute may be of the specific trait, even though the
defendant's evidence was of general character.
1910, Com. V. Maddocks, 207 Mass. 152, 93 N. E. 253 (illegal sale of liquor; after the de-
fendant's evidence of general reputation, held proper for the prosecution to introduce "his
reputation as to being a law-abiding person in relation to the liquor law," but only to re-
but the defendant's reputation-evidence; citing the text above).
1898, State v. Hairston, 121 N. C. 582, 28 S. E. 493 (only general character may be offered ;
27
§59 CIRCUMSTANTIAL EVIDENCE
[Note 1 — contimted]
but the opponent on cross-examination may ask as to the specific trait; a peculiar little
quirk, which must add interest to the game of law as here played).
1912, State v. Wilson, 158 N. C. 599, 73 S. E. 812 (State v. Hairston approved).
1907, Schultz V. State, 133 Wis. 215, 113 N. W. 428 (whether on a charge of bribery the
character inquired into may be, not merely the general trait of integrity, but also the specific
one of being a corruptionist, not decided ; careful opinion by Winslow, J.).
[Note 2; add:]
and the cases cited post, § 1981, n. 3.
[Text, p. 129 ; at the end of 1. 4, add a new note 3 :]
' 1905, State v. Bessa, 115 La. 259, 38 So. 985 ("Do you believe that a man like him would
commit, etc.?" excluded).
§ 62. Character of Complainant in Rape.
[Note 1; add, under Accord:]
1907, People v. Ryno, 148 Mich. 137, 111 N. W. 740.
1907, Lake v. Com., — Ky. — , 104 S. W. 1003.
1906, State v. Detwiler, — W. Va. — 55 S. E. 654.
[Note 2, 1. 13 from below; add:]
N. D. : 1913, State v. Apley, — N. D. — , 141 N. W. 740 (general unchastity, and resort
to houses of prostitution, admitted).
[Notei; add:]
It should apply also in a civil action for rape : Contra :
1908, Harris v. Neal, 153 Mich. 57, 116 N. W. 635 (civil action for rape; the plaintiff's bad
reputation for chastity, excluded, following the general rule for civil cases; yet the un-
soundness of that rule as an inflexible one is here illustrated, for nobody has doubted that
in a criminal prosecution the same evidence would be regarded as useful).
[Note 4; add:]
1911, People 11. Gray, 261 111. 431, 96 N. E. 268.
1907, State v. Blackburn, — la. — , 110 N. W. 275, semble.
Here the girl's good character is inadmissible also, except as supporting her testimonial
character.
1908, Leedom v. State, 81 Nebr. 686, 116 N. W. 496.
[Note 5; add:]
Admitted: 1912, State v. Dipley, 242 Mo. 461, 147 S. W. Ill (assault with intent to rape;
admitted, on the principle of § 1106, and strangely ignoring the present principle).
The following case is peculiar: 1906, State v. Romero, 117 La. 1003, 42 So. 482 (carnal
intercourse with consent; the prosecutrix' unchaste character, not admitted for defendant).
§ 63. Character of Deceased in Homicide.
[Note 1 ; add, in columns 1, 2, and 3 :]
1914, State v. Jones, — Mont. — , 139 Pac. 441.
1907, State v. Barber, 13 Ida. 66, 88 Pac. 418 (not admitted where there was "no question
as to who was the aggressor").
1905, Osburn v. State, 164 Ind. 262, 73 N. E. 601 (excluded, where the defendant was the
aggressor on uncontradicted evidence).
28
CHARACTER TO EVIDENCE AN ACT § 63
[Note 1 — continued]
1907, State v. Rutledge, 135 la. 581, 113 N. W. 461.
1906, State v. Feeley, 194 Mo. 300, 92 S. W. 663 (deceased's reputed character, admissible
on the present principle ; repudiating State v. Kennade, 121 Mo. 405, 26 S. W. 347).
1912, State v. Barrett, 240 Mo. 161, 144 S. W. 485 (State v. Kennade reinstated, and the
present doctrine repudiated ; it is strange that the Court is un9,ble to see the point).
1904, People v. Rodawald, 177 N. Y. 408, 70 N. E. 1 (excluded).
1905, State v. Exum, 138 N. C. 599, 50 S. E. 283 (rule of State v. Turpin applied).
1913, State v. Blackwell, 162 N. C. 672, 78 S. E. 316 (admissible "when the evidence is
wholly circumstantial and liie character of the encounter is in doubt" ; former cases summed
up; query whether the opinion means "or" for "and." Hoke, J., concurring, in repudia-
tion of the first limitation).
1905, Sovereign Camp v. Welch, 16 Okl. 188, 83 Pac. 547 (see the citation post, § 64, n. 3).
1907, States. Thompson, 49 Or. 46, 88 Pac. 583 (admissible).
1909, State v. Raice, 24 S. D. Ill, 123 N. W. 708 (excluded, where self-defence was not in
issue).
[Note 1, col. 4, at the end; as to peaceable character, add, as Accord:]
1905, Bloomer v. State, 75 Ark. 297, 87 S. W. 438.
1885, Davis v. People, 114 111. 86, 29 N. E. 192.
1907, Kelly v. People, 229 111. 81, 82 N. E. 198 (Hand, C. J., diss, on the facts).
1874, State v. Potter, 13 Kan. 414. 1911, State v. Truskett, 85 Kan. 804, 118 Pac. 1047.
1906, State v. Feeley, 194 Mo. 300, 92 S. W. 663 (but the State may use character for peace-
ableness in general, in rebuttal, even though the defendant has offered only the deceased's
character for quarrelsomeness when in liquor). 1913, State v. Reed, 250 Mo. 379, 157 S. W.
316 (murder ; the defendant testified that the deceased was trying to rob him ; the State then
offered the good repute of the deceased for peace and quietness ; excluded ; State v. Feeley,
supra, distinguished ; the opinion clearly perceives the relevancy of the evidence, but weakly
invokes a dread of " making a precedent which would open up a Pandora's box of collateral
issues"; "there are always many collateral issues that resourceful attorneys could inject
into all kind of suits ; " is it not a pity that these resourceful attorneys are not matched
by resourceful judges ? And is it the law's fault that the resoiu"cef ul judge is not permitted
to checkmate the chicanery of the resourceful attorney ?).
1911, State V. Vacos, — Utah — , 120 Pac. 497.
The rule in Texas on this point rests on the statute, P. C. 1895, § 713, quoted jio«i, § 246,
n. 13 ; and its singular interpretation is noticed in the citations ib. note 12.
The same question may arise where the homicide is said to have been provoked by some
other immoral act of the deceased :
1904, Melton v. State, 47 Tex. Cr. 451, 83 S. W. 822 (defendant killed deceased for insulting
his wife ; the prosecution was not allowed to introduce the deceased's character for courtesy
to ladies).
1904, Orange v. State, 47 Tex. Cr. 337, 83 S. W. 385 (defendant killed deceased for mcest
with his daughter the wife of defendant ; deceased's character for unchastity, admitted to
show the probability of the incest).
1906, Gregory v. State, 50 Tex. Cr. 73, 94 S. W. 1041 (murder ; the State alleged that the
motive was a quarrel over rents ; the defendant alleged that it was his discovery of the
deceased in intended adultery with his wife ; after evidence of the latter fact, the State
was not allowed to show the deceased's good reputed character for chastity and virtue,
such evidence being admissible only if the defendant had offered the deceased's reputed
bad character for chastity ; of such a rule, all that can be said is that it would be regarded
as abominable, in any other community ; apparently, the innocent dead are to receive no
right to defend themselves in this court).
Compare the interesting point, raised in the Thaw Case, as to contradicting the truth
of the provocation in such an issue {post, § 262).
29
§64 CIRCUMSTANTIAL EVIDENCE
§ 64. Character of CivU Parties, in general.
[Note 1; add:]
1911, McKane v. Howard', 202 N. Y. 181, 95 N. E. 642 (breach of promise of marriage;
plea, fornication before promise ; the plaintiff 's good reputation for chastity not admitted to
show the improbability of her doing such acts ; but the opinion carelessly makes the broad
but incorrect statement that this " has been the law from the earliest period ")■
[Note 3; add:]
1907, Van Horn v. Van Horn, 5 Cal. App. 719, 91 Pac. 250 (divorce for adultery ; respondent's
good character not admitted, under C. C. P. § .2053).
1909, McClure v. State Banking Co., 6 Ga. App. 303, 65 S. E. 33 (plea of non est factum to a
note; payee's reputation for bad character as a forger, admitted; good opinion).
1913, Phelps V. Chicago R. I. & P. R. Co., — la. — , 143 N. W. 853 (battery by a railroad
conductor on a passenger, the conductor being deceased at the time of the trial ; the con-
ductor's character for peaceableness held not admissible).
1892, Evans v. Evans, 93 Ky. 510, 20 S. W. 605 (divorce ; "in civil actions, evidence of
general reputation is not admissible, except when directly in issue").
1905, Mattingly v. Shortell, 120 Ky. 52, 85 S. W. 215 (plea of payment; the party's char-
acter for honesty, not admitted).
1914, Gould V. Bebee, 134 La. — ,63 So. 848 (destruction of timber; defendant's character
for honesty and honor, excluded).
1908, Harris v. Neal, 153 Mich. 57, 116 N. W. 535 (civil action for rape; the plaintiff's
bad repute for chastity, excluded).
1909, CoUister v. Ritzhaupt, 83 Nebr. 794, 120 N. W. 489 (bastardy ; defendant's character
for chastity, excluded).
1912, Rittenhofer v. Cutter, 83 N. J. L. 613, 83 Atl. 873 (battery in an arrest for a trespass ;
the defendant's peaceful and law-abiding disposition, excluded, no immoral or malicious
motive being in issue).
1912, Noonan !). Luther, 206 N. Y. 105,99 N. E. 178 (assault arid battery; defendant
pleaded that plaintiff was disorderly while on his premises; her prior good habits, not
admitted fpr plaintiff).
1905, Sovereign Camp v. Welch, 16 Okl. 188, 83 Pac. 547 (whether the deceased insured,
killed by E., was killed while " in violation of the law" under the policy ; the deceased's
character as a peaceful law-abiding citizen admitted ; following Scott v. Fletcher, Tenn.,
infra).
1905, Coruth v. Jones, 77 Vt. 441, 60 Atl. 814 (assault and battery; defendant's
character as a peaceable man, excluded).
§ 65. Character in NegUgence Issues.
lNoU2; add:]
1907, St. Louis I. M. & S. R. Co. v. Inman, 81 Ark. 591, 99 S. W. 832 (contributory negli-
gence; deceased's character as a "cautious, careful, and prudent man," excluded).
1911, Carr v. Stern, 17 Cal. App. 397, 120 Pac. 35 (defendant's driver's character for skill
and efficiency, excluded).
1913, Denbeigh v. Oregon-Washington R. & Nav. Co., 23 Ida. 663, 132 Pac. 112 (engineer's
reputation for care and prudence, excluded).
1904, Illinois C. R. Co. v. Prickett, 210 111. 140, 71 N. E. 435 (engineer killed by the ex-
plosion of his locomotive boiler ; there being no eye-witness of his conduct, his character,
for carefulness was admitted). 1906, Chicago & A. R. Co. ». Wilson, 225 111. 50, 80 N. E.
56 (death on a railroad track; no eye-witness of the actual moment of injury having
testified, the "careful habits of the deceased" were admitted). 1909, CoUison v. Illinois
Central R. Co., 239 111. 532, 88 N. E. 251 (admissible, semble). 1914, Newell v. Cleveland
30
CHARACTER TO EVIDENCE AN ACT §68
[Note 2 — continiKd\
C. C. & St. L. R. Co., 261 111. 505, 104 N. E. 223 (where there are no eye-witnesses, thfe
deceased's habits of care, etc., are admissible).
1911, Saunders D. Atchison T. & S. F. R. Co., 86 Kan. 56, 119 Pac. 255 (defendant's engineer's
character for carefulness,^ not admissible as evidence of being careful on a given occasion).
1913, Fike v. Atchison T. & S. F. R. Co., 90 Kan. 409, 133 Pac. 871 (whether the deceased,
in using the raihoad crossing, "always drove carefully watching for dangers" ; there were
no eye-witnesses of the deceased's conduct at the time of the injury; point not decided).
1885, Chase v. Maine Central R. Co., 77 Me. 262 (deceased's general character for care-
fulness, excluded, though there were no eye-witnesses).
1906, American Straw B. Co. v. Smith, 94 Md. 19, 50 Atl. 414 (defendant's driver's compe-
tence as a driver, excluded). 1908, Baltimore & O. R. Co. v. State, 107 Md. 642, 69 Atll
439 (deceased's habits as a careful driver, excluded, though there were no eye-witnesses).
1913, Greenwood v. Boston & M. R. Co., — N. H. — , 88 Atl. 217 (deceased's character
for carefulness, excluded, though there were no eye-witnesses).
1903, Reeves v. Southern R. Co., 68 S. C. 89, 46 S. E. 543 (train running past a signal ;
engineer's testimony that he had never done it, excluded ; improperly treated as a question
of character). 1904, Bedenbaugh v. Southern R. Co., 69 S. C. 1, 48 S. E. 53 (injury of a
person on a railroad track ; the plaintiff's general intoxicated habits excluded, there being
direct testimony of his condition at the time; erroneous).
1913, Arizona & N. M. R. Co. v. Clark, 9th C. C. A.,.207 Fed. 817, 823 (whether plaintiff
was a careful or negligent engineer, excluded ; the opinion shows ignorance of the different
principles involved).
1913, Southern R. Co. v. Rice's Adm'x, 115 Va. 235, 78 S. E. 692 (that the engineer was a
"fast runner," excluded).
For haiits of intemperance, see also post, §§ 85, 96.
1
§ 66. Character of PlaintifE in Defamation, to prove his Innocence.
[Note 1 ; add :]
1913, Stearns v. Long, 215 Mass. 152, 102 N. E. 326 (undecided ; here excluded, because
no crime was charged, and because the character-trait offered was not relevant).
§ 67. Character of Defendant in Malpractice.
[Note 1; add:]
The following statute belongs here :
Conn. St. 1907, c. 192, p. 740, July 8 ("general character, reputation, and professional
standing" of an attorney to be admissible in a proceeding for his removal, etc.).
§ 68. Character of Third Persons.
[Note 1; add:]
Accord: 1904, Kennington v. Catoe, 68 S. C. 370, 47 S. E. 719 (title depending on legitpnacy
of a son bom eleven months after marriage ; character of the mother for chastity about the
time of gestation, but not otherwise, admitted against the son).
Cordra, as to particular acts : 1903, State v. Hendrick, 70 N. J. L. 41, 56 Atl. 247 (con-
spiracy between two men and a woman to obtain an inheritance from B. by fraudulently
pretending a marriage between B. and the woman and producing a child as B.'s heir; acts
of criminal intimacy between the woman and certain third persons, excluded, as against
the two men ; erroneous ; this was good evidence of her likelihood to defraud in the manner
alleged, and was also admissible under the principle of § 133, post).
Compare the citations post, § 134.
31
§68 CIRCUMSTANTIAL EVIDENCE
[Text, p. 144, 1. 6; after "received," add a note la:]
1° In the following case it was of course not relevant : 1905, Toliver v. State, 142 Ala. 3,
38 So. 801 (robbery; character of H., with whom defendant was at the time, excluded).
[Note 2; add:]
Accord: 1906, Sutton v. State, 124 Ga. 815, 53 S. E. 381 (fornication with A.; reputation
of A. as a prostitute, and of her house as a bawdy-house, admitted).
1913, State v. Nieburg, 86 Vt. 392, 85 Atl. 769 (adultery with X; X's unchaste repute,
admitted). 1913, State v. Snyder, 86 Vt. 449, 85 Atl. 984 (same).
Contra: 1907, Van Horn v. Van Horn, 5 Cal. App. 719, 91 Pac. 250 (divorce for adultery;
respondent's good character, not admitted under C. C. P. § 2053).
The character of an accomplice or co-conspirator is hardly to be deemed relevant, except
for or against himself when tried jointly.
1907, Schultz V. State, 133 Wis. 215, 113 N. W. 428 (bribery; good character of an alleged
co-conspirator, excluded).
[Note 3; add:]
Contra : 1904, People v. Wilson, 136 Mich. 298, 99 N. W. 6 (bastardy ; the woman's repute
for unchastity about the time of begetting, excluded). Compare the citations in § 133, post.
^ [Note 4, par. 1 ; add :]
Accord: 1906, Ford v. Ford, 27 D. C. App. 401, 411 (good repute of a notary certifying to
an acknowledgment alleged to be false).
1906, Hannah v. Anderson, 125 Ga. 407, 54 S. E. 131 (caveators alleged fraud and threats
by the propounder of a wiU; his good character admitted).
Contra: 1905, West v. Houston Oil Co., 136 Fed. 343, 348, C. C. A. (alleged forgery of a
certificate of acknowledgment; the notary's reputation as a forger, excluded; unsound).
1910, Quinalty v. Temple, 5th C.C. A., 176 Fed. 67 (title to land; the plaintiff's title
turned on whether Q. died seised ; defendant traced title through a deed of 1837 from F.,
reciting a deed to him from Q., but no deed from Q. to F. was found ; the recital in F.'s
deed being admitted in evidence, the defendant offered to show (1) F.'s character for honesty,
and (2) Q.'s character as a spendthrift, to evidence the probable deed from Q. to F., and the
correctness of F.'s recital ; excluded ; reason, the old starched and stilted doctrines about
character-evidence ; one of them became here particularly ludicrous, viz. that character-
evidence "would greatly increase the expense a^d delay of litigation," for here the Court
ordered the whole pack of cards to be dealt over again by ordering a new trial solely for this
error, and thus "greatly increased the expense and delay of litigation," by years of time and
bags of money, to punish the defendant for wasting one hour at the original trial ; the case
was one of the really obvious opportunities for breaking through a rule of thumb and letting
in the evidence ; it was precisely the kind where common sense would welcome the evidence).
[Note 4, par. 2 ; add :]
and for character as a motive for murder (post, § 390, n. 1).
§ 70. Character Mitigating Pamages in Defamation.
[Text, p. 147, 1. 10 from below, in the quotation from Jones v. Stevens; insert, after
"character" :]
"is not admissible."
§ 73. Mitigating Damages, etc. ; State of the Law.
[Note 1; add:]
Canada, (1) : Neicf. St. 1904, c. 3, Eules of Court 32, par. 22. flike Ont. Rule 488, with
two days' notice).
32
CHARACTER IN ISSUE § 76
[Note 1 — contimied]
III. (1) : 1905, Dowie v. Priddle, 216 111. 553, 75 N. E. 243 (excluded).
Kan.: 1912", Wood v. Custer, 86 Kan. 387, 121 Pac. 355 (slander charging cattle-stealing;
reputation as to integrity and also as to being a cattle-thief, admitted).
N. J. : (1) and (2) ; General bad character is admissible : 1855, Sayre v. Sayre, 25 N. J. L.
235 (exhaustive opinion by Green, C. J.).
Wis. (2) : 1906, Earley v. Winn, 129 Wis. 291, 109 N. W. 633 (slander that plaintiff whipped
her mother ; reputation as to ill-treating her mother, admitted ; the rule being that the
reputation is confined to "the fault or trait of character involved in the offence charged,"
citing some of the above cases as authority for this).
1877, Kimball v. Fernandez, 41 id. 329 (habit of evil conduct charged; single instances
allowed to be proved ; whether in justification only or on general issue, not decided).
In Texas a peculiar rule applies to criminal libel by defaming a woman's chastity; by
Penal Code 1895, § 751, "the general reputation for chastity of the female alleged to have
been slandered may be inquired into" ; this is held to mean that on proof of the woman's
bad repute for chastity the defendant is entitled to acquittal.
1909, Dobbs v. State, 55 Tex. Cr. 483, 117 S. W. 799.
§ 74. Rumors as AfEecting Reputation.
[Note 1; add:] ,
1913, Meeker v. Post P. & P. Co., — Colo. — , 135 Pac. 457 (rumors, etc., excluded, no
issue of mitigation of damages being made under the pleading).
1873, Strader v. Snyder, 67 111. 404, 410 (general repute as to the fact charged, excluded).
1912, Mills V. Flynn, — la. — , 137 N. W. 1082 (Hanners v. McClelland followed).
1913, Ott V. Murphy, — la. — , 141 N. W. 463 (rumors excluded).
1910, Morgan v. Lexington Herald Co., 138 Ky. 637, 128 S. W. 1064 (admitted).
1906, Earley v. Winn, 129 Wis. 290, 109 N. W. 633 (slander that plaintiff whipped her
mother; Haskins v. Lumsden followed).
§ 75. Character in Mitigation of Damages in Other Actions.
[Note 1; add:]
1904, Wyman v. Lyiide, 93 Minn. 257, 101 N. W. 163 (assault and criminal abuse; the
daughter's subsequent character, excluded).
Compare also the rulings-on character as a motive (post, § 390, n. 1).
[Note 2; add:]
1906, Hardwick v. Hardwick, 130 la. 230, 106 N. W. 639 (loss of consortium ; plaintiff's
bad moral character, admitted).
Compare also the cases cited post, § 390, n. 1.
[Note 4; add:]
1912, Young V. Corrigan, D. C. N. D. Ohio, 208 Fed. 431.
[Note 6; add:]
1907, Emory v. Eggan, 75 Kan. 82, 88 Pac. 740.
1907, Conklin v. Consolidated R. Co., 196 Mass. 302, 82 N. E. 23 (assault, arrest, and
malicious prosecution).
§ 76. Plaintiff's Good Character as afEecting Damages.
[Note 1 ; add, under Defamation, Excluded:]
1906, Burkhart v. North American Co., 214 Pa. 39, 63 Atl. 410 (Clark v. North American Co.
followed).
Not decided: 1913, Stearns v. Long, 215 Mass. 152, 102 N. E. 326.
33
§76 CIRCUMSTANTIAL EVIDENCE
[Note 1; aM, under Seduction, Excluded:]
1907, Colburn v. Marble, 196 Mass. 376, 82 N. E. 28 (particular acts of unchastity do not
constitute such an attack).
§ 77. PlaintifE's Bad Character as an Excuse, etc. ; Breach of Promise of
Marriage.
[Note 2; add:]
1907, Colburn v. Marble, 196 Mass. 376, 82 N. E. 28 (collecting the cases as to the various
excuses of this sort).
But if aclval unchastity is the defence, reputed chastity is not material in rebuttal.
1911, McKane v. Howard, 202 N. Y. 181, 95 N. E. 642 (on a plea of the plaintiff's prior
fornication, in defence to an action for breach of promise, the plaintiff's good repute for
ehastity is inadmissible).
§ 78. Character of a House of Dl-fame.
[Note 1; add:]
1909, State v. Anderson, 82 Conn. Ill, 72 Atl. 648 (but if the actual character is disputed,
then the reputation becomes merely evidential, and the actual character must be found).
1913, Massee v. Williams, 6th C. C. A., 207 Fed. 222 (undecided).
[Note 1, at the end; add:]
Whether knowledge may be shown by repidation, is noticed post, § 254.
[Note 3, part 1 ; add :]
1906, State v. Hoyle, 98 Minn. 254, 107 N. W. 1130.
The same issues might arise on a charge of keeping a house for illegal gaming; but usually
the statute does not make repute a part of the issue, and the question of knowledge (post,
§ 254) or intent (post, § 367) is the important one.
§ 79. Seduction, Criminal Prosecution or Statutory Action.
[Text, p. 160,1.6; add:]
Another question is whether the chastity is presumed, so that the burden of
producing evidence of unchastity is on the defendant (post, § 2528).
§ 80. Character of an Employee.
[Note 2; add:]
1904, Gould V. Magnolia Metal Co., 207 111. 172, 69 N. E. 896 (discharge of an employee for
moral misconduct; the reputation for unchastity of his women associates, held material).
1911, Saunders v. Atchinson T. & S. F. R. Co., 86 Kan. 56, 119 Pac. 552 (fire set by loco-
motives ; engineer's character for care and skill, admissible as a part of the facts rebutting
the presumption of negligence).
§ 84. Strength.
[Note 1; add:]
The inference from heredity belongs under this principle. Its propriety has been conceded,
with certain limitations, as evidence of insanity (post, § 232) and of long life (post, § 223).
34
CHARACTER; HABIT - - §93
§ 85. Intoxication.
[Note 1 ; add, at the end :]
Compare also the eases dealing with intemperance as a question of negligence (ante, § 65).
§ 87. Skill, Technical Knowledge.
[Note 3 ; add, mider Accord :]
1220, Richard, Prior v. Moses, Riggs' Select Pleas, etc., of the Jewish Exchequer (Selden
Soc. XV, 1905, p. 4 ; forgery of a deed of debt purporting to be signed by Thomas, Prior of a
convent; the plaintiff "says that the said Prior Thomas was a good and discreet and ex-
cellent clerk, and not the man to make a charter containing bad Latin as this charter does")-
1886, Scott V. Crerar, 11 Ont. 541, 553, 562, 14 Ont. App. 152 (libel in anonymous type-
written circulars sent to lawyers, imputing to the plaintiff improper professional conduct ;
the similarity of phrases therein to phrases recently used by the defendant in conversation,
held admissible ; but not the opinion of a witness, based on the style of expressions, that
the defendant was the author; Rose, J., diss, on the latter point, in a sensible opinion;
on appeal, the ruling below was held erroneous in excluding evidence, though the language
-of the opinion shows no essential difference of views; the report's failure to state precisely
the evidence offered leaves the ruling obscure). ^
1906, Atkins v. Best, 27 D. C. App. 148, 153 (that a testatrix was "an unskilled person, . . .
unlearned in the law," considered, in interpreting the will).
1903, Thurston's Adm'r v. Prather, — Ky. — , 77 S. W. 354 (execution of a will; that
the testator "was a learned lawyer," considered).
Compare here the cases cited post, §§ 270, 2024, 2148, 2149.
§ 89. Possession or Lack of Money as affecting the Probability of a Loan, etc.
[Note 1 ; add, under Accord:]
1905, Henderson v. Henderson, 165 Ind. 666, 75 N. E. 269 (whether B. had deposited $1300 ;
her lack of money at the alleged time, admitted).
[Note 1 ; add, under Accord ;] '
1886, State v. Henderson, 29 W. Va. 147, 164, 1 S. E. 225 (forgery of a receipt; that the
party whose name was receipted was in embarrassed circumstances and unable to pay such
a sum, admitted).
1904, Rickeman v. WiUiamsburg C. F. Ins. Co., 120 Wis. 655, 98 N. W. 960 (over-insurance j
the insured's financial condition, admitted to show the improbability of carrying a large
stock of goods).
§ 93. Habit ; Miscellaneous Instances.
[Note 1; add:]
1905, Carwile v. State, —Ala. — , 39 So. 220 (deceased's habit as to carrying a billhook,
admitted).
1913, MofRtt V. Connecticut Co., 86 Conn. 527, 86 Atl. 16 (whether a car stopped at a corner
and plaintiff boarded it ; invariable custom of the cars to stop at another and not that
corner, admitted).
1912, Frederickson v. Iowa C. R. Co., — la. — , 135 N. W. 12 (deceased's habit at a rail-
way crossing, admitted).
1908, Rogers v. Clark Iron Co., 104 Minn. 198, 116 N. W. 739 (custom as to use of forms
for soldiers' homestead scrip, admitted).
1904, Wright v. Davis, 72 N. H. 448, 57 Atl. 335 (making of a loan ; the alleged borrower's
35
§93 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued]
habit of depositing at a bank, admitted). 1905, Tucker v. B. & M. R. Co., 73 id. 132,
59 Atl. 943 (deceased's habit to stop and look at a crossing ; Smith v. R. Co., followed).
1909, Bourassa v. Gi'and Trunk R. Co., — N. H. — , 74 Atl. 591 (like Smith v. R. Co.).
1906, Barrott v. Atlantic & N. C. R. Co., 140 N. C. 546, 53 S. E. 432 (expulsion from a car
for lack of a ticket ; conductor's habit as to taking tickets, admitted).
1904, Nelson v. Grondahl, 12 N. D. 130, 100 N. W. 1093 (notary's habit to present notes for
payment at the place where payable, admitted).
1905, Custer v. Fidelity M. A. Ass'n, 211 Pa. 257, 60 Atl. 776 (custom to attach a copy of
the application to an insurance policy, excluded, as not sufficient of itself, on the theory of
Schoneman v. Fegley, supra). ,
1907, Chitwood v. U. S., 8th C. C. A., 153 Fed. 551 (stealing contents of mail ; the defend-
ant contended that the letter was open when it arrived ; evidence of the habitual arrival
of torn mail packages during two months prior was held admissible). 1909, Security Mutual
L. I. Co. V. Klentsch, 8th C. C. A., 169 Fed. 104 (whether a premium had been paid ; in-
sured's custom as to paying by cash or by check, admitted).
For a habit of intoxication, see ante, §§ 65, 85, post, § 96.
§ 95. Course of the Mail and TelesTiiph.
[Note 1; add:]
1904, Planters' Mut. I. Ass'n v. Green, 72 Ark. 305, 80 S. W. 151.
1905, Merchants' Exch. Co. v. Sanders, 74 id. 16, 84 S. W. 786.
1904, National Bldg. Ass'n v. Quin, 120 Ga. 358, 47 S. E. 962.
1906, Burch v. Americus G. Co., 125 Ga. 153, 63 S. E. 1008.
1906, Clark v. People, 224 111. 554, 79 N. E. 941.
1904, Bloom v. Wanner, — Ky. — , 77 S. W. 931 (notice).
1909, Continental Ins. Co. «. Hargrove, 131 Ky. 837, 116 S. W. 256.
1906, Long BeU L. Co. v. Nyman, 145 Mich. 477, 108 N. W. 1019. >
1912, Omaha v. Yancey, 91 Nebr. 261, 135 N. W. 1044.
1913, Feder Silberberg Co. v. McNeil, — N. W. — , 133 Pac. 975 (mere mailing, without
proof of proper address, insufficient).
1905, Sherrod v. Farmers' M. F. I. Ass'n, 139 N. C. 167, 51 S. E. 910 (insurance notice).
1905, Neubert v. Armstrong W. Co., 211 Pa. 582, 61 Atl. 123 (demand-letter).
1906, Beeman v. Supreme Lodge, 215 Pa. 627, 64 Atl. 792 (the due mailing, etc., at 9 a.m.
in Philadelphia is evidence of delivery to destination in the same city on the same day).
1905, Davidson S. S. Co. v. U. S., 142 Fed. 315, 318, C. C. A.
Contra: 1913, Com. v. O'Bryan, U. & Co., 153 Ky. 406, 155 S. W. 1126 (failure to file a
statement in a public office ; the mere mailing of the statement without other evidence,
held inadmissible ; unsound).
[Note 4; add:]
1906, Burch «. Americus G. Co., 125 Ga. 153, 53 S. E. 1008 (business habit as to using only
government-stamped envelopes, admitted to show that a particular letter was stamped).
1910, Gardam & Son v. Batterson, 198 N. Y. 175, 91 N. E. 371 (whether certain letters of the
defendant had been mailed ; the defendant himself testified that he was the head of a com-
pany, that he put all letters on a desk-tray to be mailed by an employee ; that a clerk " period-
ically through the day" gathered up the mail and posted it; held, purporting to follow
Hetherington v. Kemp, that the evidence was insufficient, because it was essential to call
the clerk, whose duty it was to collect and mail, and obtain his testimony that "he had
invariably collected the letters upon the defendant's desk and had posted them"; "there
was the gap in the proof." Having regard to the habits of commercial houses, does not
this smack of Carlyle's "owl-eyed pedantry" ? ).
36
HABIT, TO EVIDENCE AN ACT § 105
§ 96. Habit of Intemperance.
[Note 1; add:]
.1910, Com. V. Rivet, 205 Mass. 464, 91 N. E. 877 (murder; deceased being fotind dead
alone, his frequent custom of intoxication and of getting into a fight when drunk, offered for
defendant to evidence that deceased "came to his death by having got into a, fight when
drunk," excluded ; this ruling might have been correct on the principle of § 142, post, but
the Court justifies it with the preposterous assertion that "the fact that a person's hoMts
or character are such that he would be apt to do an act is not competent evidence that
he did the act" ; it is apparently hard to dislodge some shibboleths).
§ 97. Habit of Negligence.
[Note 1; add:]
1913, Hodges v. Hill, 175 Mo. App. 441, 161 S. W. 633 (collision between plaintiff's mare
and defendant's buggy ; that plaintiff's son, riding the mare, was in the habit of riding there
at high speed, admitted ; careful opinion by Sturgis, J.).
1909, Bourassa v. Grand Trunk R. Co., 75 N. H. 359, 74 Atl. 590 (like State v. M. & L. R.
Co.).
1912, Zucker v. Whitridge, 205 N. Y. 50, 98 N. E. 209 (injury by a street-car at a crossing ;
the habit of the plaintiff in taking precautions when approaching a railway track, held not
admissible where there were four eye-witnesses).
§ 98. Habit as a Substitute for Recollection.
[Note 1; add:]
1909, State v. Day, 108 Minn. 121, 121 N. W. 611 (custom in administering an oath).
[Note 1, 1. 4 from the end ; add:]
also the cases cited under the attesting-witness rule (post, § 1302).
§ 104. Plan, Design ; Miscellaneous Instances.
[Note 1 ; add :]
1905, The San Rafael, 141 Fed. 270, 278, C. C. A. (whether a person was lost at sea on a
certain vessel and trip ; his expression of intent to travel thither at that time, etc., admitted).
1908, Barker v. Western Union Tel. Co., 134 Wis. 147, 114 N. W. 439 (damage by loss of
patronage ; a patron's intention to accept the plaintiff's services is evidence that the ser-
vices would have been accepted).
§ 10^. Threats of one Charged with Crime.
[Note 1, col. 1 ; add:]
1911, Allen v. King, 44 Can. Sup. 331 (cross-examination of accused to threats as testified
to by a witness at the police court, not now called, held improper).
1904, Pitts V. State, 140 Ala. 70, 37 So. 101.
1905, State v. Thompson, 127 la. 440, 103 N. W. 377 (assault with intent).
1905, Johnson v. State, 85 Miss. 572, 37 So. 926 (threats, and an attempt to secure help
in the intended killing, admitted).
1905, Sinclair v. State, 87 Miss. 330, 39 So. 522.
1905, State v. Atkins, 77 Vt. 215, 59 Atl. 826 (breach of the peace by driving a wagon into
collision).
[Note 1, col. 2, at the end ; add:]
1906, State v. Quen, 48 Or. 347, 86 Pac. 791 (threats of a third person, in the accused's
presence, with no evidence of conspiracy, excluded).
37
§ 105 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued\
The following cases are peculiar : 1905, Schroeder v. Blum, 74 Nebr. 60, 103 N. W. 1073
(malicious prosecution on a charge of assault with a gun; threats of the now plaintiff,
made before the alleged assault, but not communicated to the now defendant until after
the prosecution, and therefore inadmissible if offered on the principle of § 258, n. 2, post,
held admissible on the present principle).
§ 106. Generic Threats.
[Note 1; add:]
1904, Pitts V. State, 140 Ala. 70, 37 So. 101 (merely asking for a pistol is no more than a
general threat). 1904, Harbour v. State, 140 Ala. 103, 37 So. 330 ("I will stamp the life
out of somebody," excluded).
1904, People v. Suesser, 142 Cal. 354, 75 Pac. 1093 (threats against D. and A., admitted,
the deceased F. having been killed while preventing the execution of these threats).
1905, Rawlins v. State, 124 Ga. 31, 52 S. E. 1 (threats against the father of the children
killed, admitted).
1912, Helms v. State, 138 Ga. 826, 76 S. E. 353 (murder).
1910, Porter v. State, 173 Ind. 694, 91 N. E. 340 (wife-murder ; the defendant's statement
that "there was nothing too low down for him to do," excluded, as involving his character).
1910, Miller v. State, 174 Ind. 255, 91 N. E. 930 (after arrest, "when I get out of this, I
will get even with some of them," excluded).
1906, State v. Yates, 99 Minn. 461, 109 N. W. 1070 (arson for insurance; the defendant's
statement, about a year before, to a friend who had a stock of goods, "Why don't you get
everything you have got here insured for $800 or $1000 and in four or five days after you
get the insurance all right set them afire ?" excluded, though the opinion concedes that it
"tended to characterize her as an incendiary, willing to burn property for the purpose of
procuring the insurance thereon" ; this is one of the most depressing rulings in our records).
1909, State v. Hanlon, 38 Mont. 557, 100 Pac. 1035 ("I am coming back and drive all you
old-timers out of the camp," admitted).
1906, State v. Feeley, 194 Mo. 300, 92 S. W. 663 (a threat showing "general malice" and
a disposition "to an act which was criminal" is admissible).
1906, People v. Johnson, 185 N. Y. 219, 77 N. E. 1164 (threats five months before, repeated,
admitted).
1912, McDaniel v. State, 8 Okl. Cr. 209, 127 Pac. 358.
1914, Hiles v. State, —Tex. Cr. — , 163 S. W. 717 (murder).
1911, State V. Vacos, — Utah — , 120 Pac. 497 ("I will get him to-night," admitted).
1910, Hardy v. Com., 110 Va. 910, 67 S. E. 522.
Compare, with the above cases, those cited post, §§ 363, 396, where other principles may
lead to different results.
§ 107. Conditional Threats.
[Note 1 ; add :]
1911, State V. Averill, 85 Vt. 115, 81 Atl. 461 (murder).
1910, Hardy v. Com., 110 Va. 910, 67 S. E. 522.
§ 108. Time of Threats.
[Note 1 ; add :]
1905, State v. Coleman, 186 M. 151, 84 S. W. 978 (threats eighteen months before,
admitted).
1905, State v. Exum, 138 N. C. 599, 50 S. E. 283 (threats nine months before admitted)
38
THREATS, TO EVIDENCE AN ACT § HI
§ 111- Decedent's Threats.
[Note 6; add:]
1904, Lee v. State, 72 Ark. 436, 81 S. W. 385.
1906, People v. Lamar, 148 Cal. 564, 83 Pac. 993.
1905, State fl. Powell, 5 Penn. Del. 24, 61 Atl. 966 (murder with a knife; the deceased's
admissions that she had poisoned the defendant's coffee, and was going to kill the defendant,
admitted).
1904, McKinney v. Carmack, 119 Ga. 467, 46 S. E. 719 (rule applied).
1906, Warrick v. State, 125 Ga. 133, 53 S. E. 1027 (prior cases reviewed, and the ruling in
McKinney «. Carmack approved "as stating both the general rule . . . and the exceptional
instance"). 1910, Rouse v. State, 135 Ga. 227, 69 S. E. 180.
1907, Neathery v. People, 227 III. 110, 81 N. E. 16 (admitted).
1908, Duncan v. State, 171 Ind. 444, 86 N. E. 641 (but here excluded because evidenced by
hearsay only).
1905, Burroughs v. U. S., 6 Ind. T. 164, 90 S. W. 8 (decedent's threats admissible, even
where the issue is provocation to manslaughter, and not self-defence).
1907, State v. Blee, 133 la. 725, 111 N. W. 19 (admissible; "the precise question is now
before this Court for the first [ !] time").
1887, Hart v. Com., 85 Ky. 77, 2 S. W. 673 (uncommunicated threats, admitted).
1905, Wheeler v. Com., 120 Ky. 697, 87 S. W. 1106 (Young v. Com. followed). 1907, Com.
V. Thomas, — Ky. — , 104 S. W. 326 (generic threats, admitted).
1906, Brown v. State, 88 Miss. 166, 40 So. 737 (prior threats, and details of prior quarrels,
admissible, following Holly's Case, supra; the majority opinion, however, errs on another
point, noted post, § 396). 1911, Echols v. State, 99 Miss. 683, 55 So. 485.
1907, State v. Kelleher, 201 Mo. 614, 100 S. W. 470 (admissible). 1910, State v. Sovern,
225 Mo. 580, 125 S. W. 769 (instructions discussed).
1907, State v. Scaduto, 74 N. J. L. 289, 65 Atl? 908 (uncommunicated threats held ad-
missible if "there was an overt act of attack" and "the defendant at the time of the colli-
sion was in imminent danger" ; the latter clause is hardly required; State v. Zellers prac-
tically repudiated, though not cited).
1911, Terr. v. Trapp, 16 N. M. 700, 120 Pac. 702 (there must be other evidence of
aggression).
1911, State V. Baldwin, 155 N. C. 494, 71 S. E. 212 (admitted).
1910, Saunders v. State, 4 Okl. Cr. 264, 111 Pac. 965 (above doctrine approved).
1907, State v. Thompson, 49 Or. 46, 88 Pac. 583 (uncommunicated threats,
admissible).
1907, State v. Emerson, 78 S. C. 83, 58 S. E. 974 (murder of a woman's father ; whether
the deceased knew of illicit relations between defendant and the woman, excluded).
1906, State v. Trail, 59 W. Va. 175, 53 S. E. 17 (murder of B. ; B.'s prior declaration that
he was going to defendant's to debauch his daughter if he could get defendant drunk,
excluded, not being communicated to defendant; Sanders, J., diss, and properly).
[NoU 6, par. 2, p. 186; add:]
1904, Taylor v. State, 121 Ga. 348, 49 S. E. 303.
The threats of a third person may also be admitted, where it is desired to show that he,
and not the accused, was the aggressor :
1905, State v. Gaylord, 70 S. C. 415, 50 S. E. 20; and compare the cases cited post,
§140. . . ...
In other issues in which the aggression of the plamtiff or prosecutmg witness is material,
his threats are admissible on the foregoing principles :
1905, State v. Atkins, 77 Vt. 215, 59 Atl. 826 (breach of the peace by intentional collision ;
the prosecuting witness' threats of running into the defendant, admitted, to show
aggression).
89
§ 112 CIRCUMSTANTIAL EVIDENCE
§ 112. Testamentary Plans.
[Note 1; add:]
1905, Spencer's- Appeal, 77 Conn. 638, 60 Atl. 289 (revocation; general principle stated).
1913, Aldrich v. Aldrich, 215 Mass. 164, 102 N. E. 487 (intent to revoke ; compare the cita-
tions post, § 1737, n. 3).
1910, State v. Ready, 78 N. J. L. 599, 75 Atl. 564 ("whether a person's intention to make
a will, or to make a will of a particular pm'port, can be shown by his antecedent declarations
of that intention," answered in the aflBrmative, "when not too remote to be material").
The only case ever intimating the contrary seems to be Throckmorton v. Holt, U. S.,
cited post, §1 1734, n. 2. In State v. Ready, supra, the learned chief justice's statement
that on this rule "judicial sentiment is altogether out of harmony " and "courts are divided,"
is comprehensible only as an expression of delicate consideration for the Federal Supreme
Court's lonesome decision of Throckmorton ». Holt ; for the fact seems to be that Throck-
morton v. Holt is the only case ever decided to the contrary ; and the present opinion
itself points out the inadequacy of the citations in Throckmorton v. Holt to sustain its
decision.
§ 118. Motive not Essential.
[Note 1; add:]
It is sometimes said that the Court must charge that the absence of any apparent motive
is evidence for the defendant : 1910, Porter v. State, 173 Ind. 694, 91 N. E. 340. But all
such detailed charges are poor policy.
[Note 2; add:]
1904, Robinson v. State, 71 Nebr. 142, 98 N. W. 694 (murder).
1904, State v. Jaggers, 71 N. J. L. 281, 58 Atl. 1014 (murder).
1903, Cupps V. State, 120 Wis. 504, 97 N. W. 210.
[Note 4:; add:]
1913, People v. Cummins, — N. Y. — , 103 N. E. 169 (not decided).
Compare the doctrine as to Judicial Admissions {post, § 2591).
§ 133. Bastardy, Seduction, Rape ; Other Intercourse, etc.
[Note 1; add:]
1910, Adams v. State, 93 Ark. 260, 124 S. W. 766 (seduction; admitted, but only on the
principle of § 1007, post). 1910, Belford v. State, 96 Ark. 274, 131 S. W. 953 (here ad-
mitted when appropriate to the time of conception).
1910, Gird's Estate, 157 Cal. 534, 108 Pac. 499.
1905, Walker v. State, 165 Ind. 94, 74 N. E. 614 (bastardy; admitted).
1906, Kesselring v. Hummer, 130 la. 145, 106 N. W. 501 (seduction, with birth of a child
as aggravation ; intercourse with a third person within the period, admitted).
1914, Koepke v. Delfs, — Nebr. — , 146 N. W. 962.
1906, Busse v. State, 129 Wis. 171, 108 N. W. 64.
Compare § 68, ante.
The following case is peculiar :
1910, R. V. McNulty, 22 Ont. L. R. 350 (murder by defendant man of illegitimate child of M.
by him ; the paternity being in issue as a motive, defendant's calling of third persons to
prove their intercourse with M., who on cross-examination had denied it, excluded •
grounds obscure; unsound).
40
MOTIVE; THIRD PERSON AS THE DOER §141
[Note 2; add, under Accord:]
1890, Maynard v. People, 135 111. 416, 433, 26 N. E. 740 (bastardy; that the woman was
"out late at night with men and boys" about the time in question, admissible).
1905, Walker v. State, 165 Ind, 94, 74 N. E. 614 (with other evidence).
[Note 4; add:]
Compare State v. Hendriek, N. J. L. (1903), and' other cases cited ante, § 68, nn. 1, 2, 3.
[Text, p. 196,1.7; insert:]
incest, or rape under age.
[Note 5; add:]
Eng.: 1913, R. v. Cargill, 2 K. B. 271 (rape under age; extrinsic evidence of intercourse
of others with the girl, excluded, even though the prosecution had without objection intro-
duced evidence of her virginity).
Conn. : 1909, State v. Rivers, 82 Conn. 454, 74 Atl. 757 (rape under age ; inadmissible,
except to impeach the witness). \
D. C. : 1912, Kidwell v. U. S., 38 D. C. App. 566 (rape under age ; cross-examination to
acts of intercourse with others, held allowable, the prosecutrix here being pregnant). 1913,
Sacks V. U. S., 41 D. C. App. 34 (rape under age; unchaste conduct of the woman, ex-
cluded; citing a Missouri case and ignoring Kidwell v. U. S.).
Ind. : 1910, Heath v. State, 173 Ind. 296, 90 N. E. 310 (rape under age; excluded).
N.D.: 1913, States. Apley, — N. D. — , 141 N. W. 740 (rape underage; undecided;
sensible opinion by Goss, J. ; here held admissible to explain medical testimony to
physical condition, as in Note 6, infra).
S. D. : State v. Rash, 27 S. D. 185, 130 N. W. 91 (rape under age ; prosecutrix' unchaste
conduct, excluded).
Contra : 1906, State v. Gerike, 74 Kan. 196, 87 Pac. 759 (rape under age, with pregnancy ;
, the woman's intimate association at night with other men, admitted ; no precise rule stated).
1911, State V. Swindall, 129 La. 760, 56 So. 702 (incest).
1906, State v. Mobley, 44 Wash. 649, 87 Pac. 815 (rape under age, with pregnancy; the
woman's habit of staying away from home till after midnight, received).
This view may be justified, and is perhaps preferable to that stated above in the text,
on the ground that, though paternity is not in issue, yet, since there must have been inter-
coiu-se with some one, it is more likely that it was exclusively with some other person, on
the principle of §§ 400, 402, par. (1) (a), post.
So also the same considerations apply in abortion: 1913, Meno v. State, 117 Md. 435,
83 Atl. 769 (cited more fully post, § 390 n.).
[Noted; add:]
1904, State v. Bebb, 125 la. 494, 101 N. W. 189 Gike People v. Craig, Mich.).
§ 140. Threats by a Third Person.
[Note 1; add:]
1911, McElroy v. State, 100 Ark. 301, 140 S. W. 8 (threats by third persons, excluded, no
other evidence of their compHcity being offered).
1906, State v. McLain, 43 Wash. 267, 86 Pac. 390 (arson; mere threats of a third person,
excluded).
§ 141. Motive of a Third Person.
[Note 1; add:]
1904, Bowen v. State, 140 Ala. 65, 37 So. 233 (murder; facts showing a motive in third
persons, excluded). 1904, Walker v. State, 139 Ala. 56, 35 So. 1011 (murder ; a third per-
41
§ 141 CIRCUMSTANTIAL EVIDENCE
[Note 1 — conlinuedl
son's motive, without other connecting evidence, excluded). 1910, McDonald v. State,
166 Ala. 85, 61 So. 629 (evidence of third person's motive, with evidence of bloodhound's
trailing of him, admitted).
1912, People v. Pezutto, 266 111. 683, 99 N. E. 677 (murder; quarrels, etc., of deceased with
third persons, held properly limited by the trial Court in its discretion).
1906, State v. Barrington, 198 Mo. 23, 96 S. W. 236 (murder; certain threats by third
persons against the deceased, excluded).
1905, State v. Gaylord, 70 S. C. 415, 50 S. E. 20 (threats, etc., of a third person received;
here, to show that the third person, not the defendant, was the aggressor; compare § 112,
n. 6, ante).
1906, Porch v. State, 50 Tex.- Cr. 335, 99 S. W. 102 ("there must be something more than
mere motive" evidenced against the third person).
§ 142. Same : Miscellaneous Facts.
[Note 1; add:]
1911, McGehee v. State, 171 Ala. 19, 55 So. 159 (inculpatory conduct of a third person,
excluded).
1910, Stout V. State, 174 Ind. 395, 92 N. E. 161 (murder; that one B. had bought a revolver
of similar calibre, and that bloodhounds had trailed him after the murder, not admitted,
no offer of other evidence against B. being promised).
1908, Etly V. Com., 130 Ky. 723, 113 S. W. 896 (wife-murder; sundry evidence pointing to
another person, held improperly excluded).
1913, People v. Emmons, — Mich. — , 144 N. W. 479 (sale of fermented cider ; evidence
that other persons had the means of adulterating the cider sold, held admissible).
1912, State v. Millican, 158 N. C. 61'7, 74 S. E. 107 (arson; the defendant's offer to show
that during the time after their imprisonment other fires occurred in the same town ; un-
sound ; the offer here may have been defective in form, but the opinion's reasoning on the
relevancy of such evidence shows a singular ignorance of the facts of crime and of the
elements of logic).
§ 143. Suicide, or other Self-infliction of Harm.
[Note 1; add:]
1909, Carter v. State, 172 Ind. 227, 87 N. E. 1081 (cited more fully post, § 238, n. 6).
1912, State v. Beeson, 165 la. 355, 136 N. W. 317 (cited more fully post, § 1725, n. 1).
§ 144. Motive for Suicide.
[Notel; add:]
1904, State v. Kelly, 77 Conn. 266, 58 Atl. 706 (deceased's despondency several months
before, excluded; unsound).
§ 149. Miscellaneous Traces, in Criminal Cases.
[Note 1; add:]
1909, Phillips V. State, 162 Ala. 14, 50 So. 194 (human tracks).
1907, State v. Kehr, 133 la. 35, 110 N. W. 149 (burglary while armed with a revolver;
the possession of a revolver when arrested two months later, excluded; this is finical).
1905, State v. McAnarney, 70 Kan. 679, 79 Pac. 137 (blotfd-stains on trousers ; excluded
here, because the trousers had been placed in contact with the deceased's bloody clothing
before chemical testing). ••
1908, People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690 (knife like that with which a killing
was done).
42
THIRD PERSON THE DOER; TRACES §150
[Note 1 — continued]
1909, Sorenson j>. U. S. 8th C. C. A., 168 Fed. 785 (burglary; possession of revolver, ni-
troglycerine, etc., 18 days later, excluded on the facts).
1906, State v. Freshwater, 30 Utah 442, 85 Pac. 447 (defective typewriter showing the mark
on a letter).
[Text, p. 207, 1. 4 from below; insert:]
"Who finds the heifer dead and bleeding fresh.
And sees, fast by, a butcher with an axe,
But will suspect 'twas he that made the slaughter ? "
— Henry VI, Pt. II, III, 2.
[Text, p. 208, bottom line, after "identity" ; add a new note la:]
i« Here belongs the modern use of finger-prints of the accused, left behind on some ob-
ject at the scene of the offence.
1909, Castleton's Case, 3 Cr. App. 74 (burglary; finger-prints on a candle left behind,
proved by photographs, admitted).
1911, People V. Jennings, 252 111. 534, 96 N. E. 1077 (cited more fully post, § 411).
The trustworthiness here depends rather on the scientific principle of Identity (post, § 411).
§ 150. Bi;ands on Animals and Timber.
[Text, p. 209, lines 4r-8 from below; substitute:]
Its real probative foundation is the well-established presumption of owner-
ship from possession (post, § 2515). Courts have usually held, when the
question was raised, that the inference of ownership may be drawn, as a
matter of common law ; ' and it has been universally conceded that the-
presence of the brand is evidence of identity (i. e. of the animal being one
of those originally branded by the brand-user) even though not of owner-
ship. The larger scope of the evidence has been generally confirmed by
legislation. In most of the stock-raising communities, etc.
[Text, last line ; add, as a cross-reference :]
and § 1647.
[Note 1; add:]
1886, People v. Bollinger, 71 Gal. 17, 11 Pac. 799; (larceny; "an earmark used by the
alleged owners of the hogs was some evidence of ownership").
1907, State v. Wolfley,-75 Kan. 406, 89 Pac. 1046 (on common-law principles a brand may
be evidence of ownership as well as of identity).
1865, Plummer v. Newdigate, 2 Duv. Ky. 1 (a brand "U. S." is admissible as evidence of
ownership, but is not per se sufficient evidence).
1886, State v. Cardelli, 19 Nev. 319, 10 Pac. 433, semhle (at common law a cattle-brand may
be some evidence of ownership).
1888, Stewart ». Hunter, 16 Or. 62, 16 Pac. 876 ("Branding stock furnishes evidence of its
ownership").
Contra: 1872, Peoples v. Devault, 11 Heisk. 431 (a "U. S." brand is not evidence of owner-
ship unless shown to have been put on by U. S. officers).
[Note 2; add:]
Alia. : St. 1913, 2d sess., c. 24, § 5 (brand not vented shall be evidence of ownership by
registered brand-owner).
43
§ 150 CIRCUMSTANTIAL EVIDENCE
[Note 2 — cordinued]
Br. C. : St. 1914, 4 Geo. V, c. 9, § 5 (stock-brand not vented to be evidence of ownership,
if recorded and uncancelled).
[Note 2; add:]
Ariz. : St. 1905, c. 51, § 70 (on trial for violation of the stock laws, the presence of brand
or earmark "claimed by the accused to be his brand or mark," though not recorded, is
evidence of conversion; and the ownership of live-stock from a foreign State, etc., "may
be shown by the marks or brands thereupon" though not recorded); ib. § 65 (official
record of live-stock brands, proved by certified copy, is "prima fade evidence of all the
facts required to be entered in said book," and of the rights of the person named, or of the
assignee on proof of assignment, "to use said brand," etc.). 1914, Marley v. State, —
Ariz. — , 140 Pac. 215 (St. 1905, c. 51, §§ 66, 67, and St. 1912, c. 4, p. 13, as to brand
evidence of ownership, considered).
Colo. : St. 1913, c. 47, p. 142, Mar. 31, §§ 1, 7, 8 (in all suits involving the title to animals,
a certified copy of the record of a brand shall be "prima jane evidence of the ownership of
such animal").
Ida.: Rev. St. 1887, § 1179; St. 1905, Mar. 7, p. 352, §§ 5, 14 (m all proceedings where
title or right of possession is involved, the brand on an animal, if duly recorded, shall be
prima facie evidence that "the animal belongs to" the brand-owner and that the latter has
the right of possession at the time of action; "no evidence of ownership of stock by brands
or for the purpose of identification shall be permitted" unless the brand is recorded; the
State recorder's certified copy of the record, or the original certificate, shall be evidence
of the right to use the brand ; "parol evidence shall be inadmissible to prove the owner-
ship of a brand"). 1907, State v. Dunn, 13 Ida. 9, 88 Pac. 235 (under the statute oral
evidence of the ownership of a brand is inadmissible; since the statute, "still the brand
itself may serve as the means to the owner himself for the identification of the animal";
compare § 1639, post).
Nev. : 1886, State v. Cardelli, 19 Nev. 319, 10 Pac. 433 (an unrecorded brand may be evi-
dence of ownership).
N. Mex.: 1909, Terr. v. Valles, 15 N. Mex. 228, 103 Pac. 984 (larceny; unrecorded brand
is evidence of identity).
Okl. : 1906, Hui-st v. Terr., 16 Okl. 600, 86 Pac. 280 (larceny of cattle ; an unrecorded brand
is evidence of ownership ; the statutory rule merely provides an additional, not an exclusive
sort of evidence ; Texas rulings distinguished).
Tex. : 1903, Sapp v. State, — Tex. Cr. — , 77 S. W. 456 (Turner and Welch Cases, mpra,
both approved). St. 1913, c. 69, p. 129 (amending Rev. Civ. St. § 7160, by providing
"that this shall not apply in criminal cases").
Wyo.: St. 1913, c. 126, p. 174 (live-stock brands; amending Comp. St. 1910, § 2602; certi-
fied copy of recorded brand to be "prima facie evidence" of the ownership of such animal
by the party whose brand or mark it might be, and shall be taken as evidence of owner-
ship in all civil or criminal proceedings "when the title to the animal is involved or proper
to be proved, when such claim is sustained and corroborated with other evidence").
[Notei; add:] ^
1895, Pittsburgh, F. W. & C. R. Co. v. Callaghan, 167 111. 406, 41 N. E. 909 (lettering on
locomotive cab, held to be evidence of ownership by purporting owner).
1913, Howell V. Mandelbaum, — la. — , 140 N. W. 397 (name on a wagon, held evidence
of ownership; cases collected).
1907, State v. Ford, 76 Kan. 424, 91 Pac. 1066 (keeping a place for illegal sale of liquor;
bills of sale of liquor found in the defendant's cash register, naming him as vendee ad-
mitted, as analogous to the circumstantial evidence of tags on goods).
1910, Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764 (an automobile oc-
cupied by the driver only, injured the plaintiff ; held (1) that the number borne on the'car
44
TRACES I 154
[Note 4 — contimted]
with the certificate of registration of the defendant, who was not the driver, were sufficient
evidence of the defendant's ownership or right to possession; (2) that the driver's pos-
session of the automobile was no evidence that he was the agent or servant of the owner ;
the Court's opinion is lamentably inconsistent, for after first stating the question to be
"whether there was evidence for the jury," it proceeds to rule that "there is no' presump-
tion" ; whichever ruling the Court meant to make, it is unsound as a matter of practical
experience, which is the basis of all presumptions; and if the ruling was that "there was
no evidence," it is a proposition preposterously unfair).
N. Mex. : St. 1912, c. 28, § 4 ("in any controversy respecting the identity or ownership
or control of an automobile, the number borne by it shall be 'prima fade evidence that it
was owned and operated by the person to whom the Hcense therefor was issued").
1910, People v. Hill, 198 N. Y. 64, 91 N. E. 272 (murder; keys with tag bearing defend-
ant's name found at the place ; held doubtful ; this case shows how different a man the
judge is when reasoning about his own affairs at home and reasoning in the judicial strait-
jacket ; suppose he had forbidden a certain young man to court his daughter and then one
morning found on the parlor floor by the sofa a bunch of keys with the tabooed yoimg
man's name ; would he hold that "there was some doubt whether the evidence was properly
admitted"?)
W. Va. : St. 1905, c. 36 (licenses required for automobiles, and tags provided ; "in any
controversy respecting the identity or ownership or control of an automobile, the number
borne by it shall be prima fade evidence that it was owned and operated" by the licensee).
St. 1907, c. 82, p. 410, § 61 (hke St. 1905, c. 36).
A caution is necessary in extending the analogy of these brand and mark cases to the
use of tags, labels, bills of sale, and other documents, as applied in State v. Ford, Kansas,
supra. The basis of the inference in the brand cases is the known custom that only the
owner ordinarily imprints a brand or mark of his initials, name, etc. But when e. g. a bill
of sale for liquor sold to J. S. is found on J. S.'s premises, the inscription to J. S. is by cus-
tom the statement of the vendor, hence is (even when authenticated) no more than the
vendor's hearsay statement; hence, its only available status, prima fade, is that of an
admission of J. S. ; to bring it to this point, the principles of §§ 260 and 1073, post, must
be invoked and satisfied.
§ 153. Possession of Chattels, as Evidence of Other Crimes.
[Note 1 ; add :]
1904, McCormick v. State, 141 Ala. 75, 37 So. 377 (watch).
1905, Flanagan v. People, 214 111. 170, 73 N. E. 347; and cases cited post, § 2513, n. 8.
[Note 4:; add:]
1905, People v. Jackson, 182 N. Y. 66, 74 N. E. 565 (murder; the defendant's possession
of the deceased's watch and pocket-book, admitted).
§ 154. Possession of Money, to evidence Larceny, etc.
[Notel; add:]
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (murder; the accused's lack of money
before the crime and possession of it afterwards, and the loss of money from the house of
the victim, admitted). 1911, Com. v. Richmond, 207 Mass. 240, 93 N. E. 816.
1886, New York & B. F. Co. v. Moore, 102 N. Y. 667, 6 N. E. 293 (civil action for embezzle-
ment by an employee). 1905, People v. Gaffey, 182 N. Y. 257, 74 N. E. 836 (forgery ; the
defendant's small salary and large deposits, admitted to show the probable mode of dis- _
45
§ 154 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued]
position of the cash-stealings covered by the forged notes ; the Court seems to err in calling
this "evidence of motive").
Distinguish the use of lack of money to show motive {post, § 392).
§ 157. Possession of a Document, to show Seisin, etc.
[Note 2; add:]
1904, State v. Bruni, 37 Tex. Civ. App. 2, 83 S. W. 209 (ancient deeds admitted to show-
possession and other acts of ownership).
1905, Murphy v. Com., 187 Mass. 361, 73 N. E. 524 (boundary of town land ; certain leases,
town votes, and treasurer's entries, not all ancient, admitted to show "actual possession
by the town, through its lessees, under a claim of title").
Whether payment of taxes (as evidenced by tax-receipts) is evidence of possession of the
land, has been a large question ; see the following opinion, and cases cited : 1904, Chastang
V. Chastang, 141 Ala. 451, 37 So. 799.
§ 158. Lack of News, to show Death, etc.
[Note 1; add:]
Compare the cases cited post, § 664.
So, too, the fictitious nature of a name, or the nonexistence of an alleged person of a cer-
tain name and residence, may be evidenced by the failure to find any such person after
diligfent search :
1907, Phelps V. Nazworthy, 226 111. 254, 80 N. E. 756 (whether a deed-grantee was a fic-
titious person ; that no person by that name had ever lived in the township, admitted).
1858, State v. Wentworth, 37 N. H. 217; and cases cited post, §§ 1313, 1725, 1789, and
2531, n. 7.
Contra: 1906, Taylor v. State, 50 Tex. Cr. 381, 97 S. W. 474 (forgery of names of persons
said to be fictitious; the sheriff's returns of "not found" on subpoenas issued in various
counties for these persons as witnesses, excluded ; such a ruling may be a suitable part of
some little esoteric game of quibbles ; but it is so vast a distance sundered from the world
of common sense as to create a suspicion that the Court is under some mistake as to the
nature of the objective, called Truth, which it was placed there to ascertain).
That a voter, alleged to have voted illegally as a non-resident, cannot be found or heard
of on diligent search in the district, is another example of the principle ; but some Courts
are pedantically strict in their application of it : 1905, State v. Rosenthal, 123 Wis. 442,
102 N. W. 49.
§ 166. Resemblance of Child, to show Paternity.
[Note 1; add:]
1827, 1836, Morris v. Davis, 3 C. & P. 214, 5 CI. & F. 163 (legitimacy; "the defendant's
counsel much relied ... on the circumstance of personal resemblance that was proved
by several witnesses to exist" between the plaintiff and the mother's paramom- ; on appeal,
similar evidence was admitted on both sides without question).
1853, Doe v. Marr, 3 U. C. C. P. 36, 51 (inheritance ; to show the defendant a bastard,
his resemblance to S. and not to the husband M. was held admissible, as "auxiliary
evidence").
[Note 2; add:]
1913, Watts V. State, 8 Ala. App. 264, 63 So. 18 (seduction; exhibition of child, and testi-
mony to its paternity allowed).
1910, Adams v. State, 93 Ark. 260, 124 S. W. 766 (seduction ; resemblance of a child a few
months old, testified to).
46
TRACES, TO EVIDENCE AN ACT § 168
[Note 2 — continiied\
1911, People V. Richardson, 161 Cal. 552, 120 Pac. 20 (child 5J months old, allowed to be
exhibited as evidence of paternity).
1905, Shailer v. Bullock, 78 Conn. 65, 61 Atl. 65 (bastardy; exhibition of the child — here
10 months old — allowed).
1854, Wright v. Hicks, 15 Ga. 160, 172 (legitimacy ; resemblance of the child to the alleged
paramour, considered).
1904, McCalman v. State, 121 Ga. 491, 49 S. E. 609 (testimony to resemblance excluded;
following Hanawalt v. State, Wis. ; Candler, J., diss.).
1911, State V. Nathoo, 152 la. 665, 133 N. W. 129 (rape; the child's resemblance to the
Hindoo defendant ; not decided).
1896, People v. Wing, 115 Mich. 690, 74 N. W. 179 (bastardy; People v. White followed).
1905, State v. Danforth, 73 N. H. 215, 60 Atl. 839 (rape ; rule of the foregoing cases con-
firmed ; here the child was exhibited and its peculiarities pointed out ; the rule as stated
.above in the text "appears reasonable").
1888, State v. Horton, 100 N. C. 443, 6 S. E. 238 (State v. Woodruff folloT^ed).
1908, Anderson v. Aupperle, 51 Or. 556, 95 Pac. 330 (seduction ; infant of less than 3 months,
exhibited ; State v. Danforth, N. H., followed). 1913, State v. Russell, 64 Or. 247, 129 Pac.
1051 (incest; child of 14 months allowed to be exhibited).
[Text, p. 220, after the passage from "King John," insert:]
"Richard II, IV, 2." Dixhess of York (pleading for her traitor son with her husband)
"... Thou dost suspect
That I have been disloyal to thy bed,
And that he is a bastard, not thy son.
Sweet York, sweet husband, be not of that mind ;
He is as like thee as a man may be ;
Not like to me, nor any of my kin."
§ 167. Corporal Traits, to show Race or. Nationality.
[Note 1; add:]
1904, U. S. V. Hung Chang, 134 Fed. 19, 23 (Chinese descent, evidenced by appearance).
The same principle should apply to the resemblance of an animal, as evidence of its
pedigree : ^
1904, Brady v. Shirley, 18 S. D. 608, 101 N. W. 886, semble (qualities of a horse, admitted
on the question of its siring by a Hambletonian).
§ 168. Birth of a Child, or Pregnancy, to show Intercourse.
[Text; add, at the end, a new paragraph (3) :]
(3) So, too, in prosecutions for rape, rape under age, and sediuAion, the
pregnancy is admissible as evidence at least of the intercourse ; the accused's
identity being provable by other evidence.^
3 Accord: 1904, People v. Tibbs, 143 Cal. 100, 76 Pac. 904 (seduction under promise of
marriage ; birth of a child as shown by its presence in court, admitted).
1912, Kidwell v. U. S., 38 D. C. App. 566 (rape under age).
1909, People v. Soto, 11 Cal. App. 431, 105 Pac. 420 (pregnancy admissible to prove the
act charged ; but not, as here, the birth of a child from a prior act of intercourse used
evidentially).
1911, State v. Henderson, 19 Ida. 524, 114 Pac. 30 (rape under age; birth of a child, ad-
mitted).
47
§168 CIRCUMSTANTIAL EVIDENCE
[Text (3) — conUrmed]
1906, State v. Dolan, 132 la. 196,109 N. W. 609 (seduction; an obscure ruling, which finds
fault with the trial court for not clearly instructing the jury ; birth is said to be admissible
as evidence of a seduction, but not of the defendant's being the seducer). 1907, State v.
Nugent, 134 la. 237, 111 N. W. 927 (seduction; birth of a child, admitted). 1908, State
». Blackburn, 136 la. 743, 114 N. W. 531 (rape under age; birth of child, held to be not
corroborative of woman's testimony; following State v. Coffman, 112 la. 8, but ignoring
the above two cases). 1909, State v. Hunt, 144 la. 257, 122 N. W. 902 (seduction; birth
of a child held "corroborative of the prosecutrix as to the corpus delicti," though not as
connecting the defendant ; Dolan and Nugent cases not cited).
1911, State J). Nathoo, 152 la. 665, 133 N. W. 129 (carnal knowledge of an insensible
female ; the fact of a birth was held admissible as corroborative, if intercoiffse was other-
wise proved).
1904, State v. Walke, 69 Kan. 183, 76 Pac. 468 (statutory rape).
1905, State v. Miller, 71 id. 200, 80 Pac. 51 (same).
1906, State ». Gereke, 74 Kan. 196, 86 Pac. 160, sembk (rape under age ; birth of a child,
admitted). ,
1905, People v. Stison, 140 Mich. 216, 103 N. W. 542 (incest).
1906, State v. Palmberg, 199 Mo. 233, 97 S. W. 566 (rape under age; birth of child,
admitted).
1904, Woodruff v. State, 72 Nebr. 815, 101 N. W. 1114 (rape under age).
1912, State v. Holier, 30 S. D. 353, 138 N. W. 953 (seduction; plaintiff's pregnancy
admitted).
1906, State v. Thompson, 31 Utah 228, 87 Pac. 709 (adultery with a single woman; her
pregnancy admitted as corroborating her, but not as connecting the defendant).
1903, State v. Fetterly, 33 Wash. 599, 74 Pac. 810 (rape under age; Fullerton, C. J. : "It'
conclusively proves her testimony to the effect that the crime charged was committed, and
the truth of that lends credence to her testimony to the effect that the person she names is
the guilty party"; said of the birth or miscarriage of a child). 1905, State v. Nelson,
39 id. 221, 81 Pac. 721 (adultery; birth of child twenty months after husband's absence,
admitted) ; and some of the cases cited post, § 398. 1909, State v. McCool, 53 Wash.
486, 102 Pac. 422 (rape under age; admitted, but held not sufficient corroboration imder
the rule of § 2062, post).
Contra: 1906, Kevern v. People, 224 III. 170, 79 N. E. 574, semble (rape).
1906, People v. Brown, 142 Mich. 622, 106 N. W. 149 (rape under age in June, 1904, the
statutory age being reached on July 15, 1904; pregnancy in March knd'May, 1905, ex-
cluded ; a queer decision, the present question not being distinguished from others involved) .
[Text; add a new paragraph (4) :]
(4) So, also, a condition of any disease, subsequent to a time in issue, may
evidence its prior existence.*
* Cases cited post, § 225, n. 1.
§ 177. Conduct of Animals, to evidence a Human Act.
[Note 2; add:]
Compare the following : 1905, Miller v. Terr., 9 Ariz. 123, 80 Pac. 321 (larceny of a colt;
testimony from stockmen who had observed the animal's conduct that "the colt belonged
to certain mare" which it had been following," admitted).
Compare the unsound ruling in State v. Landry, 29 Mont. 218, 74 Pac. 418 (1903) cited
post, § 1163, n. 6.
In State «. Hunter, 143 N. C. 607, 56 S. E. 547 (1907), Chief Justice Clark reminds us
of "the classical incident of Ulysses, on his return from his memorable wanderings, being
48
TRACES, TO EVIDENCE AN ACT § 177
[Note 2 — continued]
recognized by his dog Argos (who died from joy), when his family and his followers knew
him not," and "the more modern incident of Aubry's dog of Montargis, who procured the
confession of his master's murderer by his recognition of him."
[Note 3; add:]
1892, Hodge v. State, 98 Ala. 10, 11, 13 So. 385 (murder; that a trained dog had followed
the trail to the defendant's house, admitted, on the facts). 1905, Little v. State, 145 Ala.
662, 39 So. 674 (the animal must be shown to have been trained to track human beings
and to be able to do so accurately). 1906, Richardson v. State, 145 Ala. 46, 41 So. 82
(tracing by hounds ; admitted). 1906, Hargrove v. State, 147 Ala. 97, 41 So. 972 (burglary ;
trailing of accused by bloodhounds, shown to be trained to the purpose, admitted). 1909,
McDonald v. State, 165 Ala. 85, 51 So. 629 (admitted ; here the uncertainty of the evidence
was exhibited by the dogs' trailing of two different persons).
1903, Davis v. State, 46 Fla. 137, 35 So. 76 (burglary; trailing by dogs is admissible, on
certain conditions indicating "that reliance may reasonably be placed upon the accuracy
of the trailing"). 1904, Davis v. State, 47 Fla. 26^36 So. 170 (former opinion applied).
1904, Allen v. Com., — Ky. — , 82 S. W. 589 (rule of Pedigo v. Com. applied to exclude
such evidence where the dog's qualities were not sufficiently shown). 1905, Denham v.
Com., 119 Ky. 508, 84 S. W. 538 (Pedigo v. Com. followed). 1909, Sprouse v. Com., 132 K.
269, 116 S. W. 344 (trailing by hounds from a burned house to defendant's house;
excluded, partly because the skill of the hounds was not sufficiently shown, and partly be-
cause due precautions for accuracy were not taken).
1912, State v. Rasco, 239 Mo. 535, 144 S. W. 449 (murder ; trailing by bloodhounds, allowed
on the testimony to their habits and skill).
1907, State v. Hunter, 143 N. C. 607, 56 S. E. 547 (arson ; trailing by a trained bloodhound,
admitted).
1904, Parker v. State, 46 Tex. Cr. 461, 80 S. W. 1008 (bloodhound's tracking of defendant
admitted; rule of Pedigo v. Conn, Ky., approved).
1908, State v. Freeman, 146 N. C. 615, 60 S. E. 986 (burglary; a dog's trailing of the de-
fendant, by shoe-scent, admitted).
1907, State v. Dickerson, 77 Oh. 34, 82 N. E. 969 (trailing of a murderer by a bloodhound
held admissible, provided that the particular dog was trained in tracking human beings
and had in experience been found reliable, this reliability being testified to from personal
knowledge, and that the dog had been laid on the trail at a point or track clearly indicated
'as the guilty party's ; the pedigree, etc., of the dog to be admissible in corroboration).
Contra: 1914, People v. Pfanschmidt, — 111. — , 104 N. E, 804 (murder and arson, trailing
by a. bloodhound, by means of a horse-and-buggy scent, to the accused's camp, held~not
admissible, partly because the conditions here were too full of obstacles to make the trailing
trustworthy, and also on the ground that "the trailing of either a man or an animal by a
bloodhound should never be admitted in any case").
1903, Brott V. State, 70 Nebr. 396, 97 N. W. 593 (SulUvan, C. J. : "That the bloodhound
is frequently wrong is a fact well attested by experience. ... It is unsafe evidence, and
both reason and instinct condemn it").
In McClurg v. Brenton, 123 la. 368, 98 N. W. 881 (1904), where the defendant had tres-
passed on the plaintiff's premises, looking for stolen fowls, and led by bloodhounds, the
Court disparaged such methods.
Not decided: 1910, Stout v. State, 174 Ind. 395, 92 N. E. 161 (trailing of another person
than the accused; the present question not decided; it is still open to be determined in
the future when properly presented).
[Text,p. 226, last line; add:]
Nevertheless, in actual usage, this evidence is apt to be highly misleading,
to the detriment of innocent men. Amidst the popular excitement attendant
49
§ 177 CIRCUMSTANTIAL EVIDENCE
[Text, p. 226 — ccmtinved\
upon a murder and the chase of the murderer, all the facts upon which the
trustworthiness of the inference rests are apt to be distorted in the testimony'.
Moreover, the very limited nature of the inference possible is apt to be over-
estimated, — a consequence dangerous when the jurors are moved by local
prejudice. The limitations are well stated by Mr. E. Austin Freeman, in
one of the stories in his volume entitled "The Singing Bone" (London, 1909).*
* This story, entitled "^A Case of Premeditation," is quoted in part in the Illinois Law-
Review, IX, 192.
§ 194. Accused's Character; Reasons of Policy.
[Teiet, p. 235 ; after the last quotation, insert:] /
1903, Hon. A. C. Plowden, "Grain or Chaff; the Autobiography of 'a Police Magistrate,"
c. XI, p. 142 : "Another Circuit hero carved a niche for himself in the temple of Fame
by a splendid disregard of what I might call the ordinary conventions of a criminal court.
B — was not remarkable for too much devotion to his profession. . . . On a certain occasion
at Gloucester, B — was instructed to prosecute a man for burglary. Now if there is one
elementary principle in criminal procedure more widely known and more sacredly observed
than another, it is that the antecedents of a prisoner, if unfavorable, should be religiously
kept a secret from the jury, until after they have delivered their verdict. ... Of this
sacred rule B — quickly showed, to the consternation of the prisoner, that he was profoundly
ignorant. Having touched on the main features of the charge, he proceeded : 'And now,
gentlemen, I come to a very important fact. I am sorry to tell you, though it must make
your duty easier, that the prisoner has been previously convicted — ' The judge who
was trying the case — Baron Bramwell — hastily interposed : 'Mr. B, you must not say
that!' 'Oh, but,' retorted the unabashed counsel, 'I can prove it, my lord.' 'Mr.
B — ,' again interposed the learned judge sternly, ' I am amazed at you I I forbid your
doing anything of the kind I' Whereupon B — , even more amazed than the judge, ex-
claimed reproachfully, ' But here they are ! ' And before he could be stopped, he held up
to the jury, amid much laughter from the Bar, a long list of convictions, with the prisoner's
photograph at the top ; at the same time casting a withering glance of reproof both at the
Bench and at the Bar for what he considered had been a most unmeaning interruption.
Needless to say that, in spite of an appeal from the learned judge to the jury to disregard
thgse damning proofs, the jury in double quick time returned a verdict of 'Guilty' ; and
the prisoner had just reason to regret that his fate had been placed in the hands of a counsel
who, with all his sporting instincts, had not grasped the truth that a prisoner, however
bad, is entitled to have a run for his money."
[Note 2; add:]
and the citations 'post, § 2251, note 12.
In some of the opinions in R. v. Bond, 1906, 2 K. B. 389, 408, reference is made to the con-
trasting French principle.
[Note '5; add:]
That the jurors' knowledge of an accused's criminal record would in actual experience, not
merely in theory, affect their conclusions, and that the guilty and the innocent are alike
affected by this ignorance of the jurors, or by their knowledge if incidentally obtained,
may be seen from the instances collected in Mr. Arthur Train's invaluable book, "The
Prisoner at the Bar," pp. 155-169 (1906).
50
CHARACTER, EVIDENCED BY CONDUCT § 194
[Note 6; add:]
1905, State v. Thompson, 127 la. 440, 103 N. W. 377.
1904, U. S. V. Densmore, 12 N. M. 99, 75 Pac. 31.
1904, People v. Rodawald, 177 N. Y. 408, 70 N. E. 1 (specific acts excluded, "because each
specific act shown would create a new issue" ; apparently unsound, because here the record
of conviction for assault was offered, and the defendant's knowledge that the deceased
had been in the State prison, though not a knowledge of the nature of his crime). 1908,
People V. Jones, 191 N. Y. 291, 84 N. E. 61 (former conviction, excluded).
1905, State v. Dean, 72 S. C. 74, 51 S. E. 524 (specific acts of prior violence on others,
excluded). 1906, State v. Andrews, 73 S. C. 257, 53 S. E. 423 (specific acts of violence,
excluded, unless admissible on the principle of § 248, post).
But as a sign of the times, revealing a willingness to allow inroads on the rule, see the
dissenting opinion of McBride, C. J., in State v. Start, 1913, 65 Or. 178^ 132 Pac. 512 (cited
more fully post, § 360, n. 2).
[Text, p. 237, § 2 ; ofM a new par. :]
The English Criminal Evidence Act of 1898 ' made a broad exception, in
spirit, to this traditional rule. The effect of that statute is that under certain
conditions the accused's record of prior penal convictions does get before the
jury and is considered by them as character evidence affirmatively pointing
to guilt. The statute does not say that the penal record is to be considered
for that purpose, but the statute-makers knew that it would be so considered.
Nominally, then, the prior penal record is admitted either to rebut and dis-
prove good character or for some other evidential purpose ; but these purposes
are supposed to be so limited that safeguards are set against the unlimited
use and unsafe misuse of such evidence against an habitual offender.
What are those purposes ? The statute (set out in full, post, § 488) thus,
enumerates them :
§ 1, Sub-section (/) : "A person charged and called as a witness in pursuance of this
Act shall not be asked, and if asked shall not be required to answer, any question tending
to show that he has committed or been convicted of or been charged with any offence
other than that wherewith he is then charged, or is of bad character, unless —
" (i) the proof that he has committed or been convicted of such other offence is admissible
evidence to show that he is guilty of the offence wherewith he is then charged ; or
" (ii) he has personally or by his advocate asked questions of the witnesses for the prosecu-
tion with a view to establish his own good character, or has given evidence of his good char-
acter, or the nature or conduct of the defence is such as to involve imputations on the
character of the prosecutor or the witnesses for the prosecution ; or
" (iii) he has given evidence against any other person charged with the same offence."
Here are four distinct evidential avenues. (1) The first, that of par. (i),
is the ordinary use of other offences to show intent, motive, plan, etc. (post,
§§ 300-416). Such evidence would have been admissible in any event;
the statute merely avoids any doubt as to the propriety of asking for it from
the accused himself.*
7 St. 61-2 Vict. c. 36, §1.
* Note that whenever such prior offences are thus relevant, the further objection to
asking the accused himself about them, that he is privileged not to criminate himself, is ex-
pressly met and removed by sub-section e (quoted post, § 2276, n. 5).
51
§194 CIRCUMSTANTIAL EVIDENCE
[Text, p. 237 — continued\
(2) The second, that of the first half of par. (il), is the present principle, i. e.
the rebuttal of his alleged good character by the fact of former specific bad '
acts. Here a definite change is made in the prior law. The distinction
between this and the French rule is that this rule does not permit the use
of prior offences until and unless the accused invokes an alleged good char-
acter. Nevertheless, the jury's use of such evidence is certain to go beyond
that of mere rebuttal, and to weigh the probability that a prior offender
would again offend.*
' The cases construing this part of the statute are as follows :
1851, R. V. Shrimptqn, 2 Den. Cr. C. 319, 5 Cox Cr. 387 (under St. 1836, c. Ill, quoted
post, § 196, n. 1 ; the phrase "give evidence of his good character" includes testimony of
good character obtained from an opposing witness on cross-examination).
1909, Solomon's Case, 2 Cr. App. 80 (evidence as to recent employment is not evidence
of character; whether telling the arresting officer, "I am a respectable man," etc., and
putting that in evidence, is evidence of character, not decided).
1910, R. V. Ellis, 2 K. B. 747 (meaning of par. (ii) as to "good character," carefully ex-
pounded).
(3) The third, that of the second half of par. (ii), is no novelty in the law;
it aims at the testimonial credit of the accused, by permitting his witness-
character to be impeached by prior convictions, whenever he raises the issue
of the credibility of the prosecution's witnesses as affected by their character.
This is already permissible throughout the United States (post, § 987) ; but
the statute's permission is much narrower, in that it applies only when the
character of the prosecution's witnesses has been impeached; and is some-
what broader (than in many of the United States), in that it permits any
former offence to be inquired about, regardless of the grade of the crime.^"
1° The cases construing this part of the statute are as follows :
Eng.: 1904, R. v. Rouse, 1 K. B. 184, 20 Cox Cr. 592 (false pretences; the accused, on
cross-examination answered alleging the prosecutor to be a liar; further cross-questions
as to the accused being convicted of drunkenness, etc., were held improper ; but the Chief
Justice added that "we are not laying down any general rule").
1905, R. V. Bridgwater, 1 K. B. 131, 20 Cox Cr. 737 (on a charge of stealing, cross-examina-
tion to a prior conviction was held not justified, on the facts, by the clause as to "imputa-
tions on the character of the witnesses for the prosecution").
1909, Preston's Case, 2 Cr. App. 24, 1 K. B. 568 (cross-examination to^previous convictions,
not allowed where the defendant's testimony discredited the prosecution's witnesses only
in regard to the trustworthiness of an identification).
1909, Stratton's Case,' 3 Cr. App. 255 (answer by the accused, referring to a prosecutor :
"Then you say he is not telling the truth ? — He is not," does not justify cross-examination
to character; L. C. J. Alverstone : "There could have been no unfairer instance of cross-
examination").
1909, Grout's Case, 3 Cr. App. 64 (defendant's asserting that the constable is "telling lies,"
held not to entitle prosecution to cross-examine to previous convictions).
1909, Jones' Case, 3 Cr. App. 67 (rape on defendant's daughter; defendant's assertion
that his wife induced the children to trump up the story, held on the facts to entitle prosecu-
tion to such cross-examination).
1910, Wright's Case, 5 Cr. App. 131 (under St. 1898, § 1 (/), the accused's testimony that
52
CHARACTER, EVIDENCED BY CONDUCT §196
[Text, p. 237 — continued]
he was cajoled into signing a confession, held an imputation against the prosecution's wit-
ness, so as to permit cross-examination to prior convictions ; the ruling is totally unsound,
and the opinion by Darling, J., superficially dismisses the prior rulings).
1910, Morgan's Case, 5 Cr. App. 157 (cross-examination to another crime, held on the
facts not to be justified by any imputation on the prosecution's witness).
1911, Seigley's Case, 6 Cr. App. 106 (cross-examination to prior convictions allowed).
1911, Rappolt's Case, 6 Cr. App. 106 (cross-examination to prior convictions allowed,
where the defendant testified that the prosecuting witness was a "horrible Uar").
1911, Morrison's Case, 6 Cr. App. 159, 169 (similar, where a principal witness' character
was "violently attacked").
1912, Westfall's Case, 7 Cr. App. 176 (cross-examination to drunkenness of prosecuting
witness, etc., held not an imputation entitling to cross-examination to defendant's prior
convictions).
1912, R. V. Hudson, 7 Cr. App. 256, 2 K. B. 464 (larceny; when the defendant through
counsel has accused the prosecution's witnesses of having themselves committed the
act charged, he may be cross-examined to prior convictions ; prior cases examined and
distinguished).
(4) The fourth purpose, that of par. (iii), is a novelty, in form, but it is vir-
tually another use of the third purpose, viz. it aims to throw Hght on the
accused's testimonial character, whenever he raises an issue as to the credi-
bility of an accomplice.' Theoretically, this par. (iii) should have included
the second half of par. (ii).
' This part of the statute seems not to have been construed in the recorded cases.
§ 195. Particular Good Acts, to show Defendant's Character.
[Note 4: ; add:]
1913, People v. Bollman, — Mich. — , 144 N. W. 537 (seduction).
§ 196. Particular Misconduct of Defendant, to increase Sentence.
[Note 1; add:]
Eng. : The practice prior to the statute of 1836 is to be seen from R. v. Jones, 6 C. & P. 391.
The subject is now governed by St. 1908, 8 Edw. VII, c. 59 (Prevention of Crime Act)
§ 10 ; "In the proceedings on the indictment the offender shall in the first instance be ar-
raigned on so much only of the indictment as charges the crime, and if on arraignment he
pleads guilty or is found guilty by the jury, the jury shall, unless he pleads guilty to being a
habitual criminal, be charged to inquire whether he is a habitual criminal, and in that case
it shall not be necessary to swear the jury again :
"Provided that a charge of being a habitual criminal shall not be inserted in an indict-
ment —
" (a) Without the consent of the Director of Pubhc Prosecutions ; and
" (6) Unless not less than seven days' notice has been given to the proper officer of the
court by which the offender is to be tried, and to the offender, that it is intended to insert
such a charge ;
"And the notice to the offender shall specify the previous convictions and the other
grounds upon which it is intended to found the charge."
It will be noticed that the concluding provision of St. 1836, permitting the prosecution to
show prior conviction on the issue of Not Guilty when the accused offers good character has
53
§ 196 CIRCUMSTANTIAL EVIDENCE
[Note 1 — con£mied\
been here omitted, and is transferred into the Criminal Evidence Act 1898 ; tor its construc-
tion under that Act, see ante, § 194, n. 9.
The procedure under this statute is elaborately discussed in Turner's Case, 1909, 3 Cr.
'App. 103, [1910] 1 K. B. 346.
N. Br.: 1912, R. «. Matheson, N. Br. S. C, 2 D. L. R. 835 (liquor offences; other ruUngs
collected).
Cal. : 1904, People v. Smith, 143 Cal. 597, 77 Pac. 449.
[Note 2; add:]
Va. : 1909, Wright v. Com., 109 Va. 847, 65 S. E. 19 (in capital cases, prior convictions are
not admissible under the statute ; Keith, P., dissenting in a careful opinion).
Wis. : 1909, Howard v. State, 139 Wis. 629, 121 N. W. 133 (under St. 1898, § 4736, providing
that the accused may admit the former convictions, they should not afterwards be evi-
denced nor commented on before the jury).
§ 198. Character of Deceased in Homicide, from Particular Acts of Violence.
[Note 1; add:]
Accord: 1907, State v. Blee, 133 la. 725, 111 N. W. 19 (recent assault by the deceased, ad-
mitted ; citing seven cases from other jurisdictions, but not State v. Beird, supra).
1906, McQuiggan v. Ladd, 79 Vt. 90, 64 Atl. 503 (battery; plea, self-defence, the plaintiff
being intoxicated and in that condition quarrelsome, his repute being known to defendant ;
prior instances of quarrelsomeness when intoxicated, admissible, though not known to de-
fendant).
1912, State v. Waldron, 71 W. Va. 1, 75 S. E. 558 (murder ; violent acts of deceased, just
beforehand, unknown to defendant, admitted ; careful opinion by Miller, J., approving the
above text; Williams, J., diss.).
Contra: 1904, People v. Farrell, 137 Mich. 127, 100 N. W. 264.
1904; State v. Ronk, 91 Minn. 419, 98 N. W. 334 (acts of violence towards third persons,
excluded).
1907, State v. Roderick, 77 Oh. 301, 82 N. E. 1082, semble (inadmissible).
§ 199. Party's Negligence, from Particular Negligent Acts.
[Note 1 ; add:]
1903, Munroe v. Hartford St. R. Co., 76 Conn. 201, 56 Atl. 498 (coUision of a street-car with
a wagon; the motorman's negligence when employed on another line, excluded).
1906, Lexington R. Co. v. Herring, — Ky. — , 96 S. W. 558 (injury on a street-car while en-
tering; that the plaintiff had been "frequently seen getting on and off street-cars while in
motion," excluded).
1911, Engel v. United Traction Co., 203 N. Y. 321, 96 N. E. 731 (that the motorman had
been discharged for another negligent act, excluded).
1913, Gynther v. Brown & McCabe Co., — Or. — , 134 Pac. 1186 (former mistakes of an en-
gineer in interpreting signals, admitted to show the signal-system defective, but not to show
the negUgence of the engineer).
1896, Baker v. Irish, 172 Pa. 528, 532, 33 Atl. 558 (cited ante, § 98, n. 1).
1906, Veit V. Class & N. B. Co., 216 Pa. 29, 64 Atl. 871 (explosion of a boiler, the pump and
valve having been plugged and tied, and the deceased being an employee about the engine ;
the fact that he had several times before plugged the pump, etc., excluded ; unsound).
1906, Southern R. Co. v. Blanford's Adm'x, 105 Va. 373, 54 S. E. 1 (negligence of a switch-
man; cited more fully post, § 987, n. 1). '
1902, Atherton v. Tacoma R. & P. Co., 30 Wash. 395, 71 Pac. 39 (similar to Christensen v.
U. T. Line, supra). Compare the cases cited ante, § 98. ,
54
CHARACTER, EVIDENCED BY CONDUCT §200
[Text, p. 243, after the last line ; add a new § 199o :]
§ 199a. Character of Third Persons, from Particular Acts.
In other issues, wherever the moral character of a thirds person would be
relevant under § 68, ante, may that character be evidenced by particular
instances? There is no reason for making here an inflexible rule; some-
times such evidence would be valuable and unobjectionable.'
* 1912, Noyes v. Boston & Maine R. Co., 213 Mass. 9, 99 N. E. 457 (action for value of a
house-loss by fire set from the defendant's locomotive ; the origin of the fire being dis-
puted, the defendant offered to show numerous instances of the incendiary disposition of the
plaintiff's son, as tending to show him to be the author ; excluded ; this is a good example
of the unsound rigidity of the character rule).
§ 200. Rape Complainant ; Character from Particular Acts.
[Note 1; add:]
1910, R. V. Muma, 22 Ont. L. R. 225, 229 (rape on Jan. 31 ; defence, consent; on Feb. 8
the woman, before then unmarried, was married to V. ; cross-examination of the prosecu-
trix as to having lived with V. as his wife prior to Feb. 8, was held improper ; the above
cases ignored, and no authority cited ; truly the perversity of some courts in some plain
things transcends belief).
[Note 2, par. 1 ; add :]
1908, Griffin v. State, 155 Ala. 88, 46 So. 481 (cross-examination to intercourse subsequent
to the date charged, excluded, on the facts).
1904, Plunkett v. State, 72 Ark. 409, 82 S. W. 845 (excluded, on a charge of rape under
age). '
1904, People v. Stratton, 141 Cal. 604, 75 Pac. 166 (excluded, on a charge of incest).
1904, Black v. State, 119 Ga. 746, 47 S. E. 370 (acts of intercourse with a third person T.,
offered by his testimony, excluded).
1911, State V. Henderson, 19 Ida. 624, 114 Pac. 30 (excluded).
1907, State v. Blackburn, — la. — , 110 N. W. 275 (rape under age ; excluded, on the prin-
ciple of § 1001, post, without noticing the present principle).
1911, Stewart v. Com., 141 Ky. 522, 133 S. W. 202 (detaining with intent to rape; inter-
course with other men, admitted).
1906, State v. Romero, 117 La. 1003, 42 So. 482 (carnal knowledge with consent ; the prose-
cutrix' unchaste conduct, not admitted for the defendant ; this is a curious ruling, for it
excludes for the defendant that which would have been relevant for the prosecution).
1904, State v. Smith, 18 S. D. 341, 100 N. W. 740 (excluded, on cross-examination, on a
charge of rape under age of consent, and semble, also of rape generally).
1905, Nolen d. State, 48 Tex. Cr. 436, 88 S. W. 242 (admissible).
1905, State v. Stimpson, 78 Vt. 124, 62 Atl. 14 (cross-examination of the prosecutrix to
former acts of prostitution, not allowed on a charge of rape under age, consent being
immaterial).
1913, State v. Holcomb, 73 Wash. 652, 132 Pac. 416 (excluded, even on cross-examination).
[Note 2, at the end ; add a new par. ;]
In rape under age, the female's consent being immaterial, her unchaste conduct is for that
reason immaterial, on grounds independent of those stated in the text above; and this
is generally conceded : Cases cited ante, § 133, note 5.
In seduction, where the statute makes "prior chaste .character" a part of the issue, the
fact of prior intercourse may become admissible : Cases cited post, § 200.
55
§201 CIRCUMSTANTIAL EVIDENCE
§ 201. Animal's Disposition, from Particular Instances of Behavior.
[Note 2; add:]
1913, Mithen v. Jeffery, 259 111. 372, 102 N. E. 778 (after plaintiff's evidence of two instances
of vicious conduct, defendant was allowed to offer, through various witnesses, the con-
duct of the dog on numerous occasions, amounting to an offer of uniform good disposition).
1911, Mayfield Lumber Co. v. Lewis' Adm'r., 142 Ky. 727, 135 S. W. 420 (horse's bad con-
duct a;fter an accident, admitted).
1905, Palmer v. Coyle, 187 Mass. 136, 72 N. E. 844 (injury by a vicious horse ; former
vicious acts of the horse, admitted).
§ 20.3. Common OfEenders ; Gambling.
[Note 2; add:]
1911, Martin v. State, 2 Ala. App. 175, 56 So. 64 (keeping a gaming table for gaming).
1904, State v. Behan, 113 La. 701, 37 So. 607 (keeping a house for illegal faro-banking;
dealing faro in the same place ten or fifteen days before, admitted).
Compare the cases cited post, § 367, n. 3 (prior offences to show intent in illegal gaming).
§ 204. House of Ill-fame.
[Note 1, par. (2) ; under Contra, add:]
1908, State v. Baans, 77 N. J. L. 123, 71 Atl. Ill (conviction of several inmates, excluded;
the opinion is valueless, confusing obviously distinct things, and apparently prepared in
a great hurry ; the only point that could properly have been made, namely, that of § 1270,
post, is not noticed).
§ 205. Seduction.
[Note 2; add:]
1905, State v. Hummer, 128 la. 505, 104 N. W. 722 (nature of chastity defined).
1904, Woodruff v. State, 72 Nebr. 815, 101 N. W. 11 14. ("specific acts of lewdness" are
admissible).
1909, Marshall v. Terr., 2 Okl. Cr. 136, 101 Pac. 139 ("chaste" is "a condition actually
existing"). 1911, Hast v. Terr., 5 Okl. Cr. 162, 114 Pac. 261.
1910, State v. Dacke, 59 Wash. 238, 109 Pac. 1050 (rape under age). 1911, State v. Work-
man, 66 Wash. 292, 119 Pac. 751 (statutory rape).
For the use of reputation in rebuttal in such cases, see post, § 1620.
[Note 3; add:]
1907, Russell v. State, 77 Nebr. 519, 110 N. W. 380 (excluded).
1907, State v. Slattery, 74 N. J. L. 241, 66 Atl. 866 (Foley v. State followed).
[Note 4; add:]
1913, State v. McClure, — la. — , 140 N. W. 203.
1909, State v. Turner, 82 S. C. 278, 64 ,S. E. 424 (seduction : under St. 1905, Feb. 22, the
State need not prove chastity).
[Note 6, 1 4; add:]
1913, Bray v. U. S., 39 D. C. App. 600 (seduction; the woman's intercourse with others
subsequent to the seduction, excluded here on the facts).
56
CHARACTER, EVIDENCED BY CONDUCT §208
§ 207. Excuse for Breach of Promise of Marriage.
INotel; add:]
1911, McKane v. Howard, 202 N. Y. 181, 95 N. E. 642 (particular instances of fornication,
admissible).
Contra: 1907, Colbum v. Marble, 196 Mass. 376, 82 N. E. 28.
§ 207. Justification of Defamation of Character.
[Note 1 ; add :]
1905, Dowie v. Priddle, 216 111. 553, 75 N. E. 243, semble (the proof under the plea, held
here not to meet the defamatory statements sued for).
[Note 2, par. 1; add:]
1904, Hewson v. Cleeve, L. R. 2 Ire. 536, 542 (on a general charge of swindling, justified,
particulars must be notified ; J'Anson v. Stuart, cited ante, § 73, and subsequent cases and
statutes, commented on). ,
1907, Smithy v. Pinch, 148 Mich. 670, 112 N. W. 686 (charge of being a "low woman";
on a plea of truth, specific acts excluded).
1906, Pier v. Speer, 73 N. J. L. 633, 64 Atl. 161 (slanderous chal-ge of fornication and bastardy ;
under a plea of justification, an offer to prove the plaintiff to have had gonorrhoea, not
admitted on the facts).
[iVote 2, par. 2 ; add:]
1906, Earley v. Winn, 129 Wis. 291, 109 N. W. 633 (slander that plaintiff whipped her
mother ; particular other violent acts to her mother, excluded ; but this seems inconsistent
with Talmadge v. Baker, supra, which is not cited). *
§ 208. Incompetency of Employee.
[Note 1 ; add :]
1893, Holland v. Southern P. Co., 100 Cal. 240, 34 Pac. 666 (specific acts of an engineer,
held admissible to show incompetence ; but a single act is insufficient of itself). ,
1905, Staunton Coal Co. v. Bub, 218 111. 125, 75 N. E. 770 (injury in a mine by an engineer's
negligence in hoisting the cage ; the engineer's habitual hoisting of the cage without signal,
admitted to show his incompetence).
1906, Joseph Taylor Coal Co. v. Dawes, 220 111. 145, 77 N. E. 131 (injury to a mine-work-
man by the lowering of the cage at a speed exceeding the statuto^ rate ; that "the engineer
repeatedly lowered the cage" at excessive speed, held not admissible on the present prin-
ciple, but admissible to show a knowing and wilful violation of the statute, on the principle
of § 367, post).
1910, Grebenstein v. Stone & Webster Eng. Co., 205 Mass. 431, 91 N. E. 411 ("evidence of
a specific act of negligence" of a fellow-servant, not admissible). 1911, Leary v. Webber
Co., 210 Mass. 68, 96 N. E. 136 (Hatt v. Nay followed).
1911, Rosenstiel v. Pittsburg R. Co., 230 Pa. 273, 79 Atl. 556.
1902, Green v. Wes'tern Amer. Co., 30 Wash. 87, 70 Pac. 310 ("specific acts of incompetency
of the pit boss," held admissible). 1905, Conover v. Neher R. Co., 38 Wash. 172, 80 Pac.
281 (two prior acts of an engineer, admitted to show incompetence). 1905, Dbssett v.
St. Paul & T. L. Co., 40 id. 276, 82 Pac. 273 (similar). 1914, Johansen v. Pioneer Mining
Co., — Wash. — , 137 Pac. 1019 ("numerous acts" of negligence by defendant's employee,
admitted).
57
§209 CIRCUMSTANTIAL EVIDENCE
§ 209. Mitigation of Damages ; Defamation.
[Note 3 ; change the note number to 1 ; and add, in par. 1 :]
1911, Wells V. Toogood, 165 Mich. 677, 131 N. W. 124 (excluded).
1906, Pier v. Speer, 73 N. J. L. 633, 64 Atl. 161 (excluded).
1910, Fodor ii. Fuchs, 79 N. J. L. 529, 76 Atl. 1081 (excluded).
1904, Cudlip V. Journal Pub. Co., 180 N. Y. 85, 72 N. E. 925 (excluded).
§ 211. Criminal Conversation or Alienation of Affections.
[Note 1 ; add ;]
1906, Smith v. Hockenbeny, 138 Mich. 129, 101 N. W. 207, 109 N. W. 23 (the wife's criminal
intimacy with other men, before the act in question, but not afterwards, admissible ; also
her intimacy with lewd women).
Compare the cases cited post, § 390, n. 1.
[Note 3; add:]
1904, Angell v. Reynolds, 26 R. 1. 160, 58 Atl. 625 (wife's action for alienation of affections ;
the husband's unchaste conduct with other women, admitted).
§ 213. Breach of Promise of Marriage.
[Note 1; add:]
Contra: 1907, Colburn v. Marble, 196 Mass. 376, 82 N. E. 28, semhle (including immodest
conduct).
§ 216. Criminality of Conduct, Immaterial.
[Note 2; add:] \
1905, People v. Cook, 148 Cal. 334, 83 Pac. 43.
1906, People v. Soeder, 150 Cal. 12, 87 Pac. 1016.
1904, State v. Franklin, 69 Kan. 798, 77 Pac. 588.
1908, Welch v. Com., — Ky. — , 108 S. W. 863 (motive).
1905, State v. Roberts, 28 Nev. 350, 82 Pac. 100 (stolen coins, identifying the defendants
charged with murder).
1905, State v. Hummer, 72 N. J. L. 328, 62 Atl. 388.
1905, State v. Rea, 46 Or. 620, 81 Pac. 822 (larceny of a horse ; another larceny involving
an admission by the defendant, received).
1906, Thompson v. U. S., 144 Fed. 14, 18, C. C. A.
For the use of other crimes as stated in a defendants confession of the crime charged, see
also post, § 2100, n. 3.
§218. Res Gestae; Inseparable Crimes.
[Note 1 ; add:]
1906, Hammond v. State, 147 Ala. 79, 41 So. 761 (shooting the deceased's brother immediately
after shooting the deceased; admitted).
1906, People v. McClure, 148 Cal. 418, 83 Pac. 437 (killing another person in the same
affray; admitted).
1908, People's. Manasse, J.53 Cal. 10, 94 Pac. 92 (shooting of H. and C. as "a part of the
same transaction").
1910, People v. Crowley, 13 Cal. App. 322, 109 Pac. 493 (another murder at the same time).
1914, People v. Harrison, — 111. — , 104 N. E. 259 (kidnapping a girl ; the physicians' descrip-
tion of the physical condition of the girl after her return, mentioning a swollen face, finger-
58
CHARACTER, FROM CONDUCT; CAPACITY §223
[Note 1 — contirvmd\
prints on the neck, and a rape, excluded so far as describing the rape appearances ; absurd ;
why not also exclude the swollen face and the finger-prints?).
1909, Bennett d. Com., 133 Ky. 452, 118 S. W. 332 (defacing branded railroad ties).
1913, May v. Com., 153 Ky. 141, 154 S. W. 1074 (murder; killing of another person at the
same moment, admitted).
1904, State v. Robinson, 112 La. 939, 36 So. 811 (shooting a second person, a moment later;
admitted).
1906, State v. Vaughan, 200 Mo. 1, 98 S. W. 2 (murder of a prison-guard in escaping; the
killing of two other guards at the same time, admitted).
1904, State v. Howard, 30 Mont. 518, 77 Pac. 50 (robbery of a mail clerk ; the robbery of the
baggage-car, etc., at the same time, admitted).
1906, Terr. v. Livingston, 13 N. M. 318, 84 Pac. 1021 (horse and mule stolen at the same
time). 1908, Terr. v. Caldwell, 14 N. M. 535, 98 Pac. 167 (other calves stolen at the same
time).
1908, People v. Rogers, 192 N. Y. 331, 85 N. E. 135 (assault upon three persons). 1910,
People V. Hill, 198 N. Y. 64, 91 N. E. 272 (murder ; two burglaries, admitted, to explain
the finding of three revolvers).
1912, Starr v. State, 7 Okl. Cr. 574, 124 Pac. 1109 (other cattle stolen at the same time).
1907, State v. Kenny, 77 S. C. 236, 57 S. E. 859 (murder and larceny at the same time).
1911, State V. McDowell, 61 Wash. 398, 112 Pac. 521 (indecent assault).
For the use of an accused's confession of other crimes,' see -post, § 2100, n. 3.
§ 220. Power or Strength, from Other Instances.
[Note 1 ; add :]
1905, State v. Donovan, 128 la. 44, 102 N. W. 791 (seduction under hypnotism ; defendant's
power evidenced by other instances).
Compare also the instances cited post, § 460, some of which illiistrate equally the present
principle.
§ 22L Skill or Means, from Other Instances.
[Nate 4; add:]
1905, Shockley ». Tucker, 127 la. 456, 103 N. W. 360 (negligent use of X-ray instrument by
a physician; other instances of injury caused by the defendant with such instruments,
excluded; no authority cited).
§ 222. Age from Appearance.
[Note 1, aM:\
1904, Wistrand v. People, 213 111. 72, 72 N. E. 74g (testimony to appearance may be evidence
of age). . J. •„ .
1909, People v. Davidson, — 111. — , 88 N. E. 565 (keeping a mmor m a house of lU-fame;
a person who has seen the woman may testify to her apparent age) .
1913, People v. Kaminsky, 208 N. Y. 389, 102 N. E. 515 (juvenile offender under 16; age
may be determined by inspection of the accused in court).
§ 223. Health or Disease, from Appearance, Occupation, or Heredity.
[NoU 1; add:]
For intemperance, see post, § 235.
For instances of subsequent disease, see post, § 225, n. 1.
59
§223 CIRCUMSTANTIAL EVIDENCE
[Note 2; add:]
1905, Sterling v. Union Carbide Co., 142 Mich. 284, 105 N. W. 755 (personal injury; an-
cestral long life, admitted as evidence of plaintiff's expectancy of life).
1906, Haynes v. Waterville & O. St. R. Co., 101 Me. 335, 64 Atl. 614 (personal injuries and
expectancy of life ; the ages of the plaintiff's father and grandfather at death, admitted ;
"a descent from robust, long-lived stock gives greater promise of long life than descent from
frail, short-lived ancestry, other things being equal").
But it remains true, as to the specific trait of longevity, that ancestral longevity is not
of much weight in estimating the probability of life of a particular person, because too many
other circumstances combine to effect the total chance of survival of a particular person ;
see Hamilton s. Michigan C. R. Co., 135 Mich. 95, 97 N. W. 392 (1903), and § 232, post.
§ 225. Prior or Subsequent Condition; Illness.
[Note 1 ; add ;]
1906, Nophsker v. Supreme Council, 215 Pa. 631, 64 Atl. 788 (fraudulent insurance of life ;
the insured's illness after the issuance of insurance, admitted, its nature indicating a prior
existence).
1904, Kavanaugh v. Wausau, 120 Wis. 611, 98 N. W. 550 (condition of a horse).
§ 228. Insanity, evidenced by Conduct.
[Note 2; add:]
1909, McReynolds s. Smith, 172 Ind. 336, 86 N. E. 1009.
1906, Kempf d. Koppa, 74 Kan. 153, 85 Pac. 806.
1904, Casliin d. N. Y. N. H. & H. R. Co., 185 Mass. 543, 70 N. E. 930.
1906, State v. Speyer, 194 Mo. 459, 91 S. W. 1075 (certain letters excluded).
1911, State V. Leakey, 44 Mont. 354, 120 Pac. 234 (accused's conversation, admitted on his
behalf).
[Note&; add:]
1912, Lang v. Lang, — la. — , 135 N. W. 604 (testator's delusion as to his children's mis-
conduct; the actual facts admitted).
. 1908, O'Dell V. Goff, 153 Mich. 643, 117 N. W. 59 (will made under an alleged insane de-
lusion that the contestant-son was illegitimate though born during marriage ; the chaste
repute of the wife, admitted, as evidence of the fact of legitimacy).
Compare also the proof of the falsity of the alleged fact, as evidence discrediting the witness
who testifies to the repute or rumor of it as the source of an insane person's belief (post,
§ 263).
[Text, par. (5), 1. 5 ; add a new note '" :]
''" The following cases show the distinction :
1910, Clifford v. Taylor, 204 Mass. 358, 90 N. E. 862 (testimony that a third person, an
attorney, refused to make a will for testatrix until a medical man approved, excluded).
1909, Snell v. Wilson, 239 111. 279, 87 N. E. 1022 (cited more fully post, § 260, n. 1).
1909, Fraley v. Fraley, 150 N. C. 501, 64 S. E. 381 (announcement of neighbors' views as
to a property settlement of testator, made formally to the testator, admitted as evidence
of his mental capacity).
§ 229. Testamentary Capacity.
[Note 1 ; add :]
1906, Swygart v. Willard, 166 Ind. 25, 76 N. E. 755 (statements as to property given to a
child, admitted).
60
CAPACITY § 232
[Note 1 — continued]
1907, Smith v. Ryan, 136 la. 335, 112 N. W. 8 (testatrix' declarations admitted to show
senile dementia).
[Notei; add:]
1906, Waters v. Waters, 222 111. 26, 78 N. E. 1.
1906, Dillman s. McDanel, ib. 276, 78 N. E. 691.
1904, Townsend's Estate, 122 la. 246, 97 N. W. 1108 (but here the instruction is mis-
construed).
1906, Meier «. Buchter, 197 Mo. 68, 94 S. W. 883. ,
§ 231. Insanity, from Predisposing Circumstances.
[Note 1, par. 1; add:]
1911, People V. Bowen, 165 Mich. 231, 130 N. W. 706 (wife-Aiurder ; rumors of her infidelity,
brought to the accused, and conduct of hers, personally known to him, admitted, to evidence
his mental disturbance ; but not her actual misconduct not known to him).
1912, People v. Garialo, 207 N. Y. 141, 100 N. E. 698 (reports of the murdered wife's infidel-
ity, here excluded because the homicide was deliberate and "not in the heat of an over-
mastering passion ").
1910, State v. Greene, 162 N. C. 836, 68 S. E. 16 (insanity as a plea in homicide ; the defend-
ant's wife's communication to him of a rape by the deceased, admitted, but not the fact
of the rape).
Cf. Va. St. 1908, c. 59, p. 54 (quoted post, § 263).
[Nate 1, par. 3; add:]
Distinguish also the principle of § 263, post, that the non-existence of the fact said to have
been reputed or rumored and thus to have caused a certain belief or deranged condition is
evidence to discredit the witness who testifies to the repute or rumor.
§ 232. Hereditary Insanity.
[Note 1; add:]
1905, State v. Wetter, 11 Ida. 433, 83 Pac. 341 (principle approved).
1906, Dilhnan «. McDanel, 222 111. 276, 78 N. E. 591 (insanity of a paternal aunt of the testa-
tor, lasting only eighteen months, admitted, there being other evidence of the testator's
insanity ; the Court's opinion cites cases from other jurisdictions, but ignores the foregoing
three from its own jurisdiction; this is censurable). 1912, Martin v. Beatty, 254 111.
615, 98 N. E. 996 (insanity of two brothers, two sisters, and a nephew, held improperly
excluded).
1868, Shailer v. Bumstead, 99 Mass. 112, 131 (paralysis, etc., of "several of the family of
the testatrix," not admitted because of lack of foundation; but a proof of hereditary
insanity is competent in support of evidence of the existence of insanity in any given
case).
1913, Prewitt v. State, — Miss. — , 63 So. 330 (insanity of blood relatives, admitted ; that
the tendency to insanity is hereditable need not be expressly evidenced).
1906, Myer's Will, 184 N. Y. 64, 76 N. E. 920 (general paresis of the testatrix' mother and
brother, excluded for lack of evidence that the particular form was hereditary or trans-
missible).
1906, Pringle v. Burroughs, 186 N. Y. 376, 78 N. E. 160 (ancestral or collateral insanity,
not admitted without conduct-evidence of the person himself).
Pa. : 1877, Laros v. Com., 84 Pa. 204, 209 (quoted supra).
1909, Com. V. Snyder, 224 Pa. 526, 73 Atl. 910 (Laros v. Com. approved).
61
§233 CIRCUMSTANTIAL EVIDENCE
§ 233. Prior and Subsequent Insanity.
[Nota 1 ; add :]
1911, Odom V. State, 174 Ala. 4, 56 So. 913.
1904, Shaffer v. U. S., 24 D. C. App. 417, 433 (accused).
1905, Starke v. State, 49 Fla. 41, 37 So. 850.
1904, Chicago U. T. Co. v. Lawrence, 211 111. 373, 71 N. E. 1024 (mental condition of an
injured person).
1910, Taylor v. Taylor, 174 Ind. 670, 93 N. E. 9 (adjudication of insanity in 1906, held
not improperly excluded, on the facts, to show insanity at the time of making a will in 1900).
1905, Glass' Estate, 127 la. 646, 103 N. W. 1013 (presumption as to senile dementia, dis-
cussed). 1906, Jones' Estate, 130 la. 177, 106 N. W. 610 (presumption defined). 1906,
Wharton's Will, 132 la. 714, 109 N. W. 492. 1909, Speer i). Speer, 146 la. 6, 123 N. W. 176
(testator ill of broncho-pneumonia and executing a will while ill ; testimony of witnesses
"on the day but not at the time, when this will was executed," as to his business capacity
of mind, not admitted, because of "no probative force"; a singular example of a Court
straining the law to avoid the supposed necessity of a new trial).
1911, Banks v. Com., 145 Ky. 800, 141 S. W. 380.
1904, State v. Lyons, 113 La'. 959, 37 So. 890.
1905, Gesell v. Baugher, 100 Md. 677, 60 Atl. 481 (a sibylline utterance, purporting to follow
the foregoing cases).
1904, McCoy v. Jordan, 184 Mass. 575, 69 N. E. 358 (will; the range of time is in the trial
Court's discretion). 1905, Hagar ii. Norton, 188 Mass. 47, 73 N. E. 1073 (transfer of stock,
etc., by deceased ; Shailer v. Bumstead followed). 1909, Jenkins v. Weston, 200 Mass. 488^
86 N. E. 955 (the trial Court's discretion controls as to time). 1913, Aldrich v. Aldrich,
215 Mass. 164, 102 N. E. 487 (undue influence; circumstances 12 years prior, held not
improperly excluded on the facts).
1913, BuUard's Estate, McAllister v. Rowland, — Minn. — , 144 N. W. 412 (adjudication
of insanity, made two months after the will, admitted).
1909, State v. Crowe, 39 Mont. 174, 102 Pac. 679 (trial Court's discretion).
1904, State v. Quigley, 26 R. I. 263, 58 Atl. 905.
§ 235. Intoxication.
[Note 1 ; add .-]
1905, Smith v. State, 142 Ala. 14, 39 So. 329 (conduct in a saloon, admitted to show the
extent of intoxication).
1904, Ford v. Kansas City, 181 Mo. 137, 79 S. W. 923 (specific instances of intoxication,
admitted to corroborate medical testimony to a general intemperance, as being the real
cause of plaintiff's suffering).
[Note 2; add:]
1911, Stouse V. State, 6 Okl. Cr. 415, 119 Pac. 271 (murder; that the defendants were
drinking intoxicating liquor shortfy before, admitted). 1912, Rogers s. State, 8 Okl. Cr.
226, 127 Pac. 365 (witness).
[NoteZ; add:]
1905, Miller v. People, 216 111. 309, 74 N. E. 743 (limits of time as to the taking of intoxicat-
ing liquor, considered).
1908, Pollock V. State, 136 Wis. 136, 116 N. W. 851 (intoxication Ij hours later, excluded).
§ 238. Design or Plan ; Sundry Instances of Conduct.
[Note 1; add:]
1911, State V. Hatfield, 65 Wash. 550, 118 Pac. 735 (possession of a corporate seal).
62
MENTAL CONDITION §246
[NoteS; add:]
1906, State v. Nethken, 60 W. Va. 673, 55 S. E. 742.
[Note 6; add:]
1909, Carter v. State, 172 Ind. 227, 87 N. E. 1081 (abortion with drugs; the woman's
inquiries, a few days before, as to mechanical methods of producing miscarriage, excluded ;
unsound).
1910, Com. V. Howard, 205 Mass. 128, 91 N. E. 397 (wife-murder by strangUng ; a soldier's
handbook, including instructions for the compression of the carotid artery, with the leaf
turned down at that place, the book belonging to the defendant, admitted).
1904, Wilmington S. Bank v. Waste, 76 Vt. 331, 57 Atl. 241 (forgery by H. of a note bearing
W.'s signature ; that in H.'s desk were found sheets pf paper with defendant's name written
several times, excluded, because no other evidence of H.'s authorship was given ; erroneous).
§ 246. Belief of Defendant in Homicide ; Deceased's Reputation.
[Text, p. 310, lines 2 and 3 from below :]
For ".three," read " two " ; omit " arid Massachusetts."
[Note 4 ; add :]
1909, Pate v. State, 162 Ala. 32, 50 So. 357 (character as a man who would "take his ad-
versary unawares," admitted).
[NoteS; add:]
1883, Com. V. Barnacle, 134 Mass. 215 (repudiating Com. v. Mead, infra, note 13).
1905, Com. V. Tircmski, 189 id. 257, 75 N. E. 261 (approving Com. v. Barnacle).
1909, Stevens v. State, 84 Nebr. 759, 122 N. W. 58 ("physical health and strength" of the
prosecuting witness).
[Note 9; add:]
1904, Sims v. State, 139 Ala. 74, 36 So. 138 (excluded, because the defendant's knowledge
was not shown).
1906, Rodgers v. State, 144 Ala. 32, 40 So. 572 (but the defendant's knowledge must be
shown).
1906, Jackson v. State, 147 Ala. 699, 41 So. 178.
1906, Warrick v. State, 125 Ga. 133, 53 S. E. 1027 (but the defendant's knowledge must be
shown).
1904, State v. Clayton, 113 La. 782, 37 So. 754, semble.
1909, Stockham v. Malcolm, 111 Md. 615, 74 Atl. 569 (plaintiff's carrying knuckles; here
excluded for lack of evidence of overt act).
[Note 11; add:]
1904, Kennedy v. State, 140 Ala. 1, 37 So. 90.
1909, State v. Magill, 19.N. D. 131, 122 N. W. 330.
The rule in Texas rests on the statute, P. C. 1895, § 713, quoted infra, note 13 ; but the
Court has read into the statute a limitation which does plain violence to its express words.
1906, Arnwine v. State, 50 Tex. Cr. 254,-96 S. W. 4 ("after proof of the communicated threat,
the State may introduce evidence of the good character of the deceased, even where the
defendant has not sought to do so ; but this has never been extended, so far as we are aware,
to instances of uncommunicated threats").
1906, Puryear v. State, 50 Tex. Cr. 454, 98 S. W. 258.
[Note 13; add:]
1905, Green v. State, 143 Ala. 2, 39 So. 363 (rule stated).
1909, Pate v. State, 162 Ala. 32, 50 So. 357 (repute in a place 8 miles away, admitted).
63
§246 CIRCUMSTANTIAL EVIDENCE
[Note 13 — continued]
1904, Long V. State, 72 Ark. 427, 81 S. W. 387 (reputation of the deceased residing in another
State, excluded).
1906, People ». Lamar, 148 Cal. 564, 83 Pac. 993.
1904, State s. Golden, 113 La. 791, 37 So. 757 (the trial judge, not the jury, determines
whether the overt act has been sufficiently evidenced, but his ruling may be reviewed).
1906, State ». Rodriguez, 115 La. 1004, 40 So. 438 (mode of preparing the judge's certificate
of finding as to the overt act, under St. 1896, No. 113, requiring a bill of exceptions to be
taken down at the time in writing; Provosty, J., diss., says that "the recognized purpose
of that act was to take from the control of the trial judge, where the doctrine of State v.
Ford [supra] had placed it, the statement of the facts upon which a bill has been retained ").
1906, State v. Craft, 118 La. 117, 42 So. 718 (rule of the trial Court's discretion, affirmed :
this ruUng indicates a respect for precedents, which renders no longer applicable the remarks
supra in this note upon the lack of respect formerly shown by this Court for its own prec-
edents).
1907, State v. Mathews, 119 La. 665, 44 So. 336 (excluded, because no overt act was shown).
1905, Com. V. Tircinski, 189 Mass. 257, 7,5 N. E. 261 (the foregoing cases repudiated ; the
deceased's general character as a violent and quarrelsome man, known to the defendant,
admitted).
1907, State v. Zom, 202 Mo. 12, 100 S. W. 591.
1910, State i>. Colvin, 226 Mo. 446, 126 S. W. 448 (certain testimony held insufficient).
1904, People v. Rodawald, 177 N. Y. 408, 70 N. E. 1 (admissible, if the reputation has come
to the defendant's knowledge).
1907, State ». Roderick, 77 Oh. 301, 82 N. E. 1082 (admissible ; correcting the loose remarks
in Marts v. State, supra, that besides reputation-evidence some other evidence of the actual
character must be given).
1911, State V. Parker, 60 Or. 219, 118 Pac. 1011 (holding that the jury are not to consider
the threats unless they have a doubt as to the aggressor ; but all attempts of this sort to
control the jury by instructions of law are misguided).
§ ^l?. Threats of Deceased in Homicide.
[Text, p. 314; after par. {d), insert a new par. (e) :]
(e) The adnml making of the threats is immaterial, if there was a com-
munication made to the defendant of supposed threats.^" This illustrates
the contrast of principle with the doctrine of uncommunicated threats.
^ 1909, Morris v. Terr., 1 Okl. Cr. 617, 99 Pac. 760. 1912, Rogers v. State, 8 Okl. Cr. 226,
127 Pac. 365.
1909, Buckner v. State, 55 Tex. Cr. 511, 117 S. W. 802.
[NateZ; add:]
1904, Gregory d. State, 140 Ala. 16, 37 So. 259 (rule applied). 1905, Dunn v. State, 143 Ala.
67, 39 So. 147 (rule applied). 1904, Gilmore v. State, 141 Ala. 51, 37 So. 359 (rule applied).
1906, Martin ». State, 144 Ala. 8, 40 So. 275 (rule applied). 1906, Skipper v. State, 144 Ala.
100, 42 So. 43 (excluded, because no issue of self-defence arose).
1904, Lee v. State, 72 Ark. 436, 81 S. W. 385.
1906, People v. Lamar, 148 Cal. 564, 83 Pac. 993.
1904, Taylor 1>. State, 121 Ga. 348, 49 S. E. 303 (communicated expressions of peaceful
intent, admitted in rebuttal).
1914, People v. Terrell, — 111. — , 104 N. E. 264 (excluded, because no evidence of an overt
act was offered).
1911, Malone v. State, 176 Ind. 338, 96 N. E. 1 (threats excluded for lack of overt act).
64
KNOWLEDGE AND BELIEF §249
[Note 3 — continued]
1906, State v. Rodriguez, 115 La. 1004, 40 So. 438 (mode of preparing an exception to the
judge's ruling as to the overt act ; cited more fully ante, § 246, n. 13). 1906, State v. Craft,
118 La'. 117, 42 So. 718 (rule of the trial Court's discretion, affirmed ; "that question is no
longer open for discussion"; Breaux, C. J., diss.). 1907, State v. Mathews, 119 La. 665,
44 So. 336 (excluded, because no overt act was shown). 1912, State v. Harris, 131 La. 616,
59 So. 1009 (overt act mjast be shown etc.).
1905, State v. ToUa, 72 N. J. L. 515, 62 Atl. 675 (murder of a man by a woman ; the man's
prior attempts to .violate her, excluded in the absence of any act at the time indicating "a
present intention to harm the defendant").
1910 White v. State, 4 Okl. Cr. 143, 111 Pac. 1010 (not admissible where no issue of self-
defence is made).
[Note 3, last paragraph ; add :]
1906, State v. Mitchell, 130 la. 697, 107 N. W. 804 (threats of the defendant's landlord, a
third person, excluded).
§ 2i8. Deceased's Violent Acts, in Homicide.
[Note 1; add:]
1911, Coulter v. State, 100 Ark. 561, 140 S. W. 719 (excluded). •
1883, Doyal v. State, 70 Ga. 134, 147 (specific acts of violence, excluded).
1906, Warrick v. State, 125 Ga. 133, 53 S. E. 1027 (excluded).
1911, State V. Louie Moon, 20 Ida. 202, 117 Pac. 757 (threats of associates of the deceased,
excluded).
1904, People v. Farrell, 137 Mich. 127, 100 N. W. 264 (admissible).
1910, State v. Green, 229 Mo. 642, 129 S. W. 700 (excluded).
1909, State v. Hanlon, 38 Mont. 557, 100 Pac. 1035 (prior specific acts of violence, here
admitted ; State v. Felker and State v. Shadwell approved but enlarged in scope).
1907, State v. Roderick, 77 Oh. 301, 82 N. E. 1082 (acts of violence known to defendant by
repute only, excluded; but semble such acts personally known to him may be admissible).
1906, Sneed v. Terr., 16 Okl. 641, 86 Pac. 70 (prior violence by deceased, the same night,
admitted).
1906, McHugh V. Terr., 17 Okl. 1, 86 Pac. 433 (assault with intent ; State v. Burton, —
Kan, — , approved).
1912, Rogers v. State, 8 Okl. Cr. 226, 127 Pac. 365 (admitted).
1908, State v. Doris, 51 Or. 136, 94 Pac. 44 (prior assault by a third person similar in size
etc. to the deceased, admitted).
1905, State v. ThrailkiU, 71 S. C. 136, 50 S. E. 551 (excluded). 1905, State v. Dean, 72 S. C.
74, 51 S. E. 524 (State v. Dill approved). 1906, State v. Andrews, 73 S. C. 257, 53 S. E. 423
(admissible if "so connected in point of time or occasion with the fatal rencontre as to
produce reasonable apprehension," etc.).
1909, State v. Raice, 24 S. D. Ill, 123 N. W. 708 (deceased's prior acts of violence to third
persons, notified to defendant, excluded).
1906, McQuiggan v. Ladd, 79 Vt. 90, 64 Atl. 503 (cited ante, § 198, n. 1).
Distinguished here the use of prior quarrels or difficulties between the deceased and the
accused as evidence of motive {pod, § 396).
For the propriety of contradicting the fact of such prior acts of violence, see poat, § 263.
§ 249. Reputation of Incompetent Employee.
[Note 1; add:]
1905, Southern Pac. Co. v. Hetzer, 135 Fed. 272, 276, 285, C. C. A. ("a general reputation
for incompetence" is admissible).
65
§249 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued] *
1905, Huntt V. McNamee, 141 Fed. 293, 299, C. C. A., semhle (admissible only after
other evidence of specific acts). »
1911, Rosenstiel ii. Pittsburg R. Co., 230 Pa. 273, 79 Atl. 556 (the learned judge here seems
to be in error in supposing that any courts have a contrary rule).
1913, Serdan v. Falk Co., 163 Wis. 169, 140 N. W. 1035 (reputation admissible, to evidence
knowledge, after the fact of incompetence has been evidenced, even though the knowledge
is not disputed).
§ 250. Acts of Incompetent Employee.
[Note 1; add:]
Accord: 1911, Leary v. Webber Co., 210 Mass. 68, 96 N. E. 136 (prior instances admitted;
opinion obscure). 1910, Igo v. Boston Elev. R. Co., 204 Mass. 197, 90 N. E. 674 ("In-
competence cannot be inferred from a single act of negligence").
1911, Rosenstiel v. Pittsburgh R. Co., 230 Pa. 273, 79 Atl. 556 (inconsistent statements, but
apparently specific acts when known to the proper authority are admissible, contrary to
Frazier v. R. Co., infra). i
1903, Wabash S. D. Co. v. Black, 126 Fed. 721, 726, C. C. A. (previous bursting of two
similar pulleys made by the same employees, admitted) . 1906, Southern Pac. Co. «. Hetzer,
135 Fed. 272, 279, C. C. A. (negligence of a fellow-servant; "specific acts of incompetence
of the servant, notice of which Was brought home to the master before the accident " are
admissible, and also' acts "so notorious that they ought to have been known"; but not
specific acts "of which the master had no notice or knowledge prior to the alleged accident").
1905, Huntt ®. McNamee, 141 Fed. 293, 299, C. C. A. (there must be either specific acts
"brought home to the knowledge of the master" or acts "of such nature and frequency
that the master in the exercise of due care must have had them brought to his notice").
1909, Pittsburgh R. Co. v. Thomas, 3d C. C. A., 174 Fed. 691 (negligent motorman as a
fellow-servant ; two prior negligent acts here held insufficient ; good opinion, distinguishing
between the concrete negligence of the specific act and the incompetence of the man doing
the act).
Contra: 1894, Cosgrove v. Pitman, 103 Cal. 268, 275, 37 Pac. 232 (specific acts, not ad-
missible; here, of intemperance; following Frazier !). R. Co., Pa.).
1913, Simon ». Hamilton L. Co., 76 Wash. 370, 136 Pac. 361 (acts of incompetency subse-
quent to the period of employment, excluded).
1913, Guy V. Lanark Fuel Co., — W. Va. — , 79 S. E. 941 (company physician's competence ;
some specific instances of intoxication, held not enough on the facts to know defendant's
knowledge of the physician's intemperateness).
§ 251. Owner of a Vicious Animal.
[Note 1 ; aid :]
1905, Palmer v. Coyle, 187 Mass. 136, 72 N. E. 844 (injury by a vicious horse ; the reputation
of the horse, admitted to show defendant's knowledge).
[Nate 2; add:]
1906, Warren v. Porter, 144 Mich. 699, 108 N. W. 435 (injury by a runaway team ; a former
instance of its running away, known to the defendant, admitted).
§ 252. Owner of a Dangerous Machine or Place.
[f«a^, p. 324,i:2; add:]
or to show negligence of the employee? {ante, § 199).
66
KNOWLEDGE AND BELIEF §252
[Note 3 ; add:]
1909, Miller v. MuUan, 17 Ida. 28, 104 Pac. 660 (mere rumor held inadmissible).
Distinguish here the use of a local custom for trespassers to walk on a railroad track at
a certain part, as an element in determining the wanton management of a railroad train ;
here the custom does not evidence the knowledge ; but the custom, plus knowledge by the
engineer otherwise evidenced, may serve to fix his conduct as wanton. 1910, Birmingham
So. R. Co. V. Fox, 167 Ala. 281, 52 So. 889.
[Note&; add:]
1904, Davis v. Kornman, 141 Ala. 479, 37 So. 789 (injury to an employee at a machine ; prior
similar defects of operation, admitted);
1903, Roche v. Llewellyn I. Co., 140 Cal. 563, 74 Pac. 147 (prior accident to a boiler on a
third person's premises ; held not admissible against the defendant on the facts).
1908, Hotchkiss M. M. & R. Co. v. Bruner, 42 Colo. 305, 94 Pac. 331 (former mine accident,
admitted to show notice; citing cases from Ind., Minn., N. Y., and Pa., and ignoring the
foregoing case). 1913, Meeker v. Fairfield, — Colo. — , 136 Pac. 471 (that other persons
had before fallen at the same place, admitted to show notice).
1905, Mobile & O. R. Co. v. Vallowe, 214 111. 124, 73 N. E. 416 (Chicago v. Powers approved).
1905, Frank v. Hanly, 215 111. 216, 74 N. E. 130 (employee's injury at a machine ; prior injury
to another employee at the same machine, and his notification to the defendant, admitted
to show the latter's notice of the defect). 1907, Chicago v. Jarvis, 226 111. 614, 80 N. E. 1079
(prior falls at a coal-hole, admitted to show knowledge).
1904, Potter v. Cave, 123 la. 98, 98 N. W. 569 (injury at a stairway ; "previous accidents on
this stairway and warnings to the defendant that it was dangerous," excluded, on the singular
theory that "if dangerous in fact, his knowledge would be immaterial" ; wholly ignoring the
above Iowa cases, citing a few of those in § 458, post, but ignoring the later ones ; a repre-
hensible opinion). 1904, Harrison v. Ayrshire, 123 la. 528, 99 N. W. 132 (defect near the
walk where plaintiff was hurt, admitted). 1905, Farrell v. Dubuque, 129 la. 447, 105 N. W.
696 (condition of other similar frames erected on the street, admitted to show notice).
1904, Crigler v. Ford, — Ky. — , 82 S. W. 599 (previous falls of an elevator, admitted).
1904, Yates v. Covington, 119 Ky. 228, 83 S. W. 592 (see the citation post, § 458, n. 2).
1912, Maryland El. R. Co. v. Beasley, 117 Md. 270, 82 Atl. 157 (prior operation of an auto-
matic bell alarm, admitted).
1910, Bleistine v. Chelsea, 204 Mass. 105, 90 N. E. 526 (adjacent sewer's condition, ad-
mitted). 1913, Williams v. Winthrop, 213 Mass. 581, 100 N. E. 1101 (highway defect;
"Generally in this Commonwealth evidence of this character has been excluded").
1904, Gregory v. Detroit U. R. Co., 138 Mich. 368, 101 N. W. 546. 1908, Woodworth v.
Detroit U. R. Co., 153 Mich. 108, 116 N. W. 549 (prior highway accidents, admitted).
1905, Hunter v. Ithaca, 141 Mich. 539, 105 N. W. 9 (Strudgeon ». Sand Beach followfed).
1908, Wiita v. Interstate Iron Co., 103 Minn. 303, 115 N. W. 169 (former mine accidents
under similar circumstances, admissible).
1903, Kingfisher v. Altizer, 13 Okl. 121, 74 Pac. 107 (defective bridge ; other accidents at
the same place, and other defects in the bridge, admitted to show notice).
1904, Nelson v. Union R. Co., 26 R. I. 251, 58 Atl. 780 (injury by a trolley-pole's breaking
a light globe ; prior similar breakages admitted to show knowledge).
1908, Can- v. American Locomotive Co., 29 R. I. 276, 70 Atl.. 196 (prior trouble witha valve,
admitted).
1882, District of Columbia v. Armes, 107 U. S. 519, 2 Sup. 840 (see the citation post, § 458,
n. 2).
1904, Johnson v. Union P. C. Co., 28 Utah 46, 76 Pac. 1089 (prior defective operation of
a mine-car, admitted). 1911, Harris v. Ogden Steam Laundry Co., 39 Utah 436, 117 Pac.
700 (injury while made dizzy by gasoline fumes ; instances of the effect of such fumes on
other persons, admitted).
1904, Franklin v. Engel, 34 Wash. 480, 76 Pac. 84 (trap-door to a cellar ; Elster v. Seattle
67
§252 CIRCUMSTANTIAL EVIDENCE
[Note 6 — continued]
followed). 1905, Hansen v. Seattle L. Co., 41 Wash. 349, 83 Pac. 102 (prior accidents at
the same and similar cog-wheels, admitted). 1913, Armstrong v. Yakima Hotel Co., 75
Wash. 477, 135 Pac. 233 (prior fall at a step, admitted).
1904, Duncan v. Grand Rapids, 121 Wis. 626, 99 N. W. 317 (general condition of a sidewalk,
admitted). 1904, Lyon v. Grand Rapids, ib. 609, 99 N. W. 311 (similar evidence excluded,
not being material to show notice here). 1904, Hallum «. Omro, 122 Wis. 337, 99 N. W.
1051 (general condition of a sidewalk, for three years past, admitted). 1905, Pumorlo v.
Merrill, 125 Wis. 102, 103 N. W. 464 (similar). 1908, Fleming v. Northern T. P. Mill, 135
Wis. 157, 114 N. W. 841 (machine).
Compare the citations post, § 438, n. 6.
§ 254. Adverse Possession, Stolen Goods, Gambling Houses.
[Note 1; aM:\
1905, Henry v. Brown, 143 Ala. 446, 39 So. 325.
1906,' Doe V. Edmondson, 145 Ala. 557, 40 So. 505 (title by prescription).
1904, Miller v. Shumway, 135 Mich. 654, 98 N. W. 385.
[Note 1, last line; add:]
and § 1587.
[NoteZ; add:]
1908, Oldstadt v. Lineham, 1 Alta. 417 (ninety-three notes obtained by fraudulent misrep-
resentation ; to show defendant's notice of the fraud when he purchased, his taking of
similar notes from the same payee on former occasions was admitted).
[Note 3; add:]
1904, State v. Simon, 70 N. J. L. 407, 57 Atl. 1016 (receiving goods ; conversations with the
seller, admitted).
Compare the cases cited post, § 1781 (declarations by the accused).
[Text, p. 326,1.3; add:]
The leasing of premises for gaming may raise an issue of knowledge, which
is provable by the repute of the house ; ^ but usually other kinds of evidence
are involved {post, § 367).
6 1905, Bashinski v. State, 122 Ga. 164, 50 S. E. 54.
1904, State v. Steen, 125 la. 307, 101 N. W. 96.
§ 255. Dealer with a Partnership.
[Note 2; add:]
1907, Bush & H. Co. v. McCarty Co., 127 Ga. 308, 56 S. E. 430 (evidence not here suffi-
cient as offered).
§ 256. Maker of False Representations.
[Note 2; add:]
1905, Connelly v. Brown, 73 N. H., 193, 60 Atl. 750 (deceit by a tenant; the landlord's
statements to her, admitted, to show her belief in the truth of representations by her to
the plaintiff as to the landlord's intent).
68
KNOWLEDGE AND BELIEF- §260
§ 257. Seller of Liquor to Intemperate or Minor.
[Note 1, par. 2; add:]
and the following decision :
1906, State v. Brooks, 74 Kan. 176, 85 Pac. 1013 (knowingly permitting the use of a building
for liquor sales ; repute of the place as a liquor nuisance, admitted).
§ 258. Party Prosecuting or Arresting vrithout Probable Cause.
[Note 1, first point; add, under Accord:]
1907, Emory v. Eggan, 75 Kan. 82, 88 Pac. 740 (but reputation in another city, such as not
to be known to the defendant, is inadmissible).
1906, Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33.
[same ; add, under Contra :]
1906, Sinclair v. Ruddell, 16 Man. 53, 60.
[Note 1, second point, £it the bottom; add, under Accord:]
1904, Thurkettle v. Frost, 137 Mich. 649, 100 N. W. 283.
1905, Shea v. Cloquet L. Co., 97 Minn. 41, 105 N. W. 552.
1913, Mcintosh v. Wales, — Wyo. — , 134 Pac. 260 (plaintiff's good repute, admitted, even
before it is impeached by defendant).
[Note 2; add:]
1906, Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33 (prosecution for larceny, the plaintiflE's
confession, communicated to the defendant, of prior larcenies, excluded ; imsound).
1909, Schoette v. Drake, 139 Wis. 18, 120 N. W. 393 (prior disorderly conduct of plaintiff
on same day, admitted).
[Note 5; add:]
1913, Webb v. Gray, — Ala. — , 62 So. 194 (defamation of plaintiff's chastity; purporting
letters of plaintiff to L., admitting intercourse, shown by L. to defendant, admissible to
evidence good faith).
1904, Griswold v. Griswold, 143 CaL 617, 77 Pac. 672 (malicious proceedings in lunacy ; the
family physician's report to defendant, admitted to show his probable cause).
§ 260. Possessor of a Document.
[Note 1, par. 1; add:]
1906, U. S. V. Greene, 146 Fed. 784, D. C. (a letter by defendant, in his letter-book, locked
up and not sent, admitted).
1907, State v. Ford, 76 Kan. 424, 91 Pac. 1066 (illegal sale of liquor ; cited ante, § 150, n. 4).
[Note 1, par. 3; add:]
1909, Snell v. Weldon, 239 111. 279, 87 N. E. 1022 (obscene letters from a woman legatee to
the testator, found in his trunk, excluded, on the ground that his moral delinquency was not
material to insanity or to undue influence ; but also on the erroneous ground that "the
retaining the letters in his trunk did not necessarily imply assent to what they contained " ;
his retention of the series was at least some evidence of a sympathetic state of mind towards
the writer, esoecially in view of his marginal comment on one of them, "the best letter of all,
sure" ; Wright v. Tatham not cited).
69
§261 CIRCUMSTANTIAL EVIDENCE
§ 261. Miscellaneous Instances of Belief or Knowledge.
[Note 2; add:]
1906, Ditto V. Slaughter, — Ky. — , 92 S. W. 2 (duress of a wife in signing a note under
tlireats by the payee to prosecute the husband ; whether the husband's report to the wife
that threats had been made to him was admissible ; the Court divided evenly).
1911, Washoe Copper Co. v. Junila, 43 Mont. 178, 115 Pac. 917 (knowledge of a lode, as
essential at the time of an application for placer patent; a "declaratory statement" as to
the lode, void in form, not admissible to show knowledge in the community ; sed quare).
The following ruling, on the Court's theory, perhaps belongs here, though it might also
belong under § 231, n. 1, par. 2 l-
1908, Curtice v. Dixon, 74 N. H. 386, 68 Atl. 587 (deed made while insane and unduly in-
fluenced ; to show that the grantor disliked the defendant on account of her quarrelsome
disposition, his statement to that effect had been received ; specific instances of such
disposition were then received in corroboration, though these instances were not known
to the grantor).
[Note A; add:]
1911, Murphy v. Atlanta & C. A. L. R. Co., 89 S. C. 15, 71 S. E. 296 (incompetence of em-
ployee known to employer ; declarations of trainmaster at time of employment, admitted).
1906, Gulf C. & S. F. R. Co. v. Matthews, 100 Tex. 63, 93 S. W. 1068 (whether a person
knew of M.'s death ; his reading of newspapers and hearing conversations on the subject,
admitted).
Compare also the cases admitting character to show motive (post, § 390, n. 1).
[Text, p. 330 ; add two new sections :]
§ 262. (14) Insane Belief, as shown by Facts told to the Party. The pres-
ent principle sometimes comes into play where a deranged mental condition
is said to have been caused in part by a belief in certain facts. Here it may
therefore be shown that the party was made aware of the supposed exciting
facts by a repute or rumor or other form of communication, which thus
tended to create the belief and cause the derangement.'
• Cases cited ante, § 231.
§ 263. Disproof of the Facts conununicated. In some of the foregoing
classes of cases — notably those of § 248 (decealsed's violent acts) and § 262
(facts exciting mental derangement) — the question may arise whether the
objective facts themselves may be disproved. On the one hand, the non-
existence of those facts seems at first sight to have no bearing ; because it
is the mere report or repute or communication (and not the truth of it)
which has been introduced to show the party's state of mind ; for example,
in homicide, the reasonableness of the accused's apprehension of the de-
ceased's aggression is equally great, if the accused has heard of a cruel and
.violent act of the deceased, even though that act was never committed.
On the other hand, assuming that for any purpose the objective fact has a
bearing, the rule against contradicting a witness on a collateral point (post,
§ 1001) should not stand in the way ; for if the fact is relevant at all, it is
not any more collateral than the rumor of it.^
2 Post, § 1005, n. 7.
70
KNOWLEDGE AND BELIEF §263
[Text, p. 330 — continued]
That the objective truth, however, of the fact reported or rumored, may
sometimes be relevant seems clear, namely, when the non-existence of
the fact is offered as tending to show that the witness testifying to the communi-
cation of the alleged fact is not testifying truly. For example, on a prosecution
for murder, the defence being insanity caused by brooding over the deceased's
persistent pursuit of the virtue of the defendant's wife, suppose that the
defendant's wife testifies in his behalf to numerous reports, made by her to
the defendant, of the deceased's attempts to seduce her ; now if it could be
shown indubitably that such attempts upon the witness never took place,
would this not make it less likely that the alleged communications of them
were made by her? In other words, would not the witness to these com-
munications be discredited on the material question whether the communi-
cations were ever made ? As a mere question of natural instinctive reason-
ing, the aflBrmative answer would seem plain. If we add to this the feature
that the wife further testifies (on cross-examination) that the deceased's
alleged attempts did in fact take place, we thus add the circumstance that
the witness is proved to have falsified on that point ; and thus the lie on the
fact of the attempts enables the prosecution to argue additionally that the
witness is falsifying on the other fact of the communication of the alleged
attempts to the defendant. From both points of view, therefore, it seems
proper to allow the prosecution to disprove the alleged acts, the communi-
cation of which is alleged to have produced the defendant's mental condition.*
' The following ruling and statute confirms this result : 1907, Knapp v. State, 168 Ind. 153,
79 N. E. 1076 (homicide ; plea, self-defence ; the defendant testified to having heard before
the affray that the deceased had clubbed to death a certain old man while arresting him ;
this fact, if true, was admissible on the principle of § 248, ante, to evidence the defendant's
state of mind ; the prosecution offered to show that in truth the old man had not been
clubbed, but had died of senility and alcoholism ; this was admitted as tending to show
the improbabihty of the clubbing having occurred and therefore of the witness having heard
of it by report ; good opinion by Gillett, J. ; it will be noticed that this is in effect the same
point that arose in the Thaw trial for murder, N. Y., March, 1907). Va. St. 1908, c. 59,
p. 54 (in homicide or assault with intent or cases under Code § 3671, when the accused
has evidenced "that he believed a wrong to have been committed upon some member of his
family," etc., whether on a "defence of insanity or as evidence of extenuating circum-
stances," the prosecution may evidence "the truth or falsity of the existence of such a
wrong," whereon the accused may " introduce evidence in rebuttal as to such truth or
falsity").
Contra, in principle :
1883, People v. Hurtado, 63 Cal. 288 (murder; the wife's confession of adultery with the
deceased was testified to by the defendant ; evidence tending to prove the fact of that
adultery was not admitted for the defendant as corroborating his testimony to her con-
fession ; nor would the prosecution have been allowed to prove her innocence).
1907, Shipp V. Com., 124 Ky. 643, 99 S. W. 945 (mrn-der; defence, insanity, partly caused
by his wife's confession of infidelity with S. ; his wife's character for chastity, held not
admissible for the prosecution to show that she "was not guilty of the conduct ascribed
to her "). ' .
1913, People v. Harris, 209 N. Y. 70, 102 N. E. 546 (wife-murder ; the accused having testified
71
§263 CIRCUMSTANTIAL EVIDENCE
[Text, p. 330 — continued]
that his wife had told him that "she was in the family way by T.," the prosecution offered
to show that the wife was not pregnant at all, as evidence that she did not make such a
statement to him; held inadmissible, conceding the relevancy of the fact, as pointed out
above, but emphasizing the principle of avoiding confusion of issues on collateral points;
the reply in this case must be that as the accused rested his defence largely on the provo-
cation involved in the alleged statement, the fact of the making of the statement could not
be deemed collateral in any real sense ; for nobody ever heard of an alleged threat by a
deceased in a homicide case being excluded from refutation because it was collateral, and
yet it plays precisely the same important part in the issue as the wife's statement here).
1907, Jones v. State, 51 Tex. Cr. 472, 101 S. W. 993 (homicide; the defendant's wife
had told the defendant that the man had raped her ; proof of a continued illicit intimacy
between deceased and the wife, tending to show that her intercourse had been voluntary,
excluded).
Compare the citations ante, § 228, n. 6, § 231, n. 1, post, § 1005, n. 7.
The judicial view contrary to that above expressed was given general notoriety in
consequence of nisi prius rulings in the Thaw trial (N. Y. City, March, 1907 ; murder of
one believed to have seduced the defendant's wife), and the Loving trial (Houston, Va.,
June 27, 1907; murder of one believed to have ravished the defendant's daughter). The
public comment called forth by these cases emphasized further the unfortunate possibili-
ties of abuse inherent in that solution for unscrupulous or reckless persons.
The following case ignores this principle :
1914, People v. Jung Hing, — N. Y. — , 106 N. E. 105 (murder ; the defence being that the
deceased haddharged the defendant with taking a ring which deceased said he had given
to his girl G. W., the prosecution called G. W. to prove that she did not know defend-
ant, that she had never given him a diamond ring, and that deceased had never given
her a diamond ring; held inadmissible, on the ground that deceased's supposed state-
ments were evidenced merely as words provoking a quarrel, on the principle of § 1768,
post, that hence their truth was immaterial, and hence G. W.'s testimony was erroneous ;
yes, but also, the facts, if facts, that deceased had not given her a diamond ring,
etc., were evidence that deceased did not make any such charge to the defendant, and that
defendant's witnesses were falsifying ; this is so obvious to the plain man, and was so
obviously the reason for introducing the evidence, that it is curious to find the Court of
Appeals ignoring it; they could hardly avoid at least facing the point).
§ 266. Conduct and Utterances as Evidence of Knowledge or Belief.
[Note 2, col. 1; add:]
1904, State v. Kelly, 77 Conn. 266, 58 Atl. 705 (murder by strychnine; the defence being
suicide, the deceased's statement when speaking of suicide, "I have got the stuff to do it
with," not admitted to show possession of strychnine or knowledge of its qualities; also
excluding the deceased's statements, on finding dead chickens, " They are dead from
strychnine," etc., on the ground of the res gestoe rule, post, § 1773 ; this is unsound ; the
accused may have been plainly guilty, in the Court's opinion, and no new trial needed
{ante, § 21), but that does not excuse the distortion of the rules of evidence; all the above
evidence was admissible on the present principle).
1905, Fox V. Manchester, 183 N. Y. 141, 75 N. E. 1116 (negligent maintenance of an electric
wire ; the defendant's officer's testimony at an inquest after the injury, stating that he knew
of the defective wire before the injury, held to be a hearsay assertion of a past fact ; a good
illustration of the limits of the principle).
[NoteZ; add:]
The following case ignores this principle : 1906, Salem News P. Co. v. Caliga, 144 Fed. 965,
C. C. A (libel for asserting that the plaintiff's picture was a mere copy of T.'s picture;
conversations of persons showing their belief in the assertion, excluded).
72
CONSCIOUSNESS OF GUILT §276
[Note 4; add:]
1905, Haughton v. Mtna. L. Ins. Co., 165 Ind. 32, 73 N. E. 592 (insured's statements pending
application for insurance, admitted to show "knowledge of his physical condition at the time
of making the alleged false and fraudulent statements").
1906, Nophsker v. Supreme Council, 215 Pa. 631, 64 Atl. 788 (rule of Swift v. Ins. Co., N. Y.,
applied, but not with a careful statement of the principle).
§ 269. Legitimacy, as evidenced by Parents' Conduct.
[Note 3, par. 1 ; add :]
1906, Breidenstein v. Bertram, 198 Mo. 328, 95 S. W. 828 (but here the further question is
involved of the effect of a statute declaring that recognition of an illegitimate child, after
marriage with the mother, shall legitimate it).
§ 270. Identity, as evidenced by Belief, etc.
[Note 4; add:]
1906, Thompson v. U. S., 144 Fed. 14, 20, C. C. A. (a witness allowed to identify a man by
name, though she had "come to know" his name subsequently; "knowledge of the name
by which, the person is generally known is of sufficient reliability to be put in evidence").
Compare the cases cited ante, § 87, post, §§ 2024, 2148, 2149.
§ 273. Demeanor when Arrested.
[Note 2; add:]
1903, People v. Farrington, 140 Cal. 656, 74 Pac. 288 (demeanor when found with stolen
property, admitted).
1914, People v. Duncan, 261 111. 339, 103 N. E. 1043 (attempted suicide while in jail, ad-
mitted).
1904, Austin m Bartlett, 178 N. Y. 310, 70 N. E. 855 (defendant's failure to call upon plaintiff
after her injury, not admitted).
§ 274. Accused's Demeanor during Trial.
[Note 1; add:]
1908, People v. McGinnis, 234 111. 68, 84 N. E. 687 (following Purdy's Case).
[Note 2; add, under Accord:]
1910, Waller v. U. S., 8th C. C. A., 179 Fed. 810.
§ 276. Flight, Escape, Resistance, or Concealment.
[Note 3 ; add, in par. 1 :]
1905, Franklin v. State, 145 Ala. 669, 39 So. 979 (false statements as to identity). 1906,
Allen V. State, 146 Ala. 61, 41 So. 624 ("all the facts connected with the flight" are admis-
sible). 1906, Glass v. State, 147 Ala. 60, 41 So. 727 (resistance at the time of arrest, ad-
mitted). , » , , ,.
1905, People v. Easton, 148 Cal. 50, 82 Pac. 840 (rule applies to a defendant pleadmg
insanity). 1913, People v. Lee Nam Chin, — Cal. — , 137 Pac. 917 (instructions discussed ;
knowledge of the corpus deUcti is necessary, Sloss, J., diss, on this point). 1911, People v.
Jones, 160 Cal. 358, 117 Pac. 176 (another instance of the futility of including in the instruc-
tions a disquisition of law on the inferences from flight; the opinion seems to approve the
two erroneous notions mentioned in par. (a) and (6) supra).
73
§276 CIRCUMSTANTIAL EVIDENCE
[Nate 3 — continued]
1905, Wooldridge v. State, 49 Fla. 137, 38 So. 3 (and here the governor's proclamation of a
reward, the sheriff's testimony of search, etc., were admitted to show the circumstances of
the fJight).
1904, Johnson v. State, 120 Ga. 135, 4V S. E. 510 ("the events and circumstances connected
with the flight" are admissible; here, the denial of identity, etc.). 1905, Grant v. State,
122 Ga. 740, 50 S. E. 946 (flight on seeing the officer in another town, where he had no
authority to arrest, admitted).
1904, McKevitt v. People, 208 111. 460, 70 N. E. 693 (resisting arrest, admitted).
1904, State v. Poe, 123 la. 118, 98 N. W. 687. 1905, State v. Richards, 126 la. 497, 102
N. W. 439. 1905, State v. Matheson, 130 la. 440, 103 N. W. 137.
1905, State v. Kesner, 72 Kan. 87, 82 Pac. 720 (failure to appear for trial in pursuance to a
recognizance bond).
1905, State v. Nash, 115 La. 719, 39 So. 854 (flight is admissible, even when the killing
was open and public; explaining State v. Melton, 37 La. An. 77 and later cases). 1906,
State ». High, 116 La. 79, 40 So. 538 (two shots fired by defendant, in resisting arrest,
admitted). i
1908, State v. Lambert, 104 Me. 394, 71 Atl. 1092 (possession of a revolver at the time of
arrest, admitted).
1906, State v. Spaugh, 200 Mo. 571, 98 S. W. 55 (resistance, and other circumstances, while
in flight, admitted). '
1904, Kennedy v. State, 71 Nebr. 765, 99 N. W. 645 (attempt to escape). 1904, Woodruff
V. State, 72 Nebr. 815, 101 N. W. 1114.
1913, Robinson v. State, 8 Okl. Cr. 667, 130 Pac. 121.
1890, State v. Lee, 17 Or. 488, 21 Pac. 455. 1905, State v. Ryan, 47 Or. 338, 82 Pac. 703.
1909, State v. Osborne, 64 Or. 289, 103 Pac. 62 (flight).
1904, Bennett v. State, 47 Tex. Cr. 52, 81 S. W. 30 (efforts of the sheriff to find the defendant,
admitted).
1904, State v. Deatherage, 36 Wash. 326, 77 Pac. 504.
The dissenting opinion of Deemer, C. J., in State v. Poe, la., supra, is the most sensible
deliverance on this subject, and ought to put an end to judicial quibbling.
On the same principle an attempt at suicide is admissible: 1904, State v. Jaggers, 71'
N. J. L. 281, 68 Atl. 1014.
[NoteS, par. 2; add:]
The unfortunate influence of the above Federal cases may be seen in the following
opinions :
1910, People v. Fiorentino, 197 N. Y. 660, 91 N. E. 195 (here the Court gives undue weight
to Hickory v. U. S., and erroneously says that "flight of itself is no evidence of guilt" is
" sound as an abstract proposition of law " ; of course, the same would be true of any
evidence whatever : "of itself" it is not proof; but it is absurd to single out flight as the
subject for such a charge).
1911, Terr. v. Lucero, 16 N. M. 652, 120 Pac. 304 (following the Federal cases).
1911, State V. Papa, 32 R. I. 453, 80 Atl. 12.
1914, Stewart, U. S., 9th C. C. A., 211 Fed. 41 (an instruction held not to be within the
rulings of the Hickory and Alberty cases).
[Note 3 ; add a new par. :]
Another form of quibble, using the present principle as a steeple-chase obstacle to win
the game of a lawsuit, is to naine all these possible aspects of the inference as instructions
to the jury; of course the trial judge cannot be expected to divine just how the Supreme
Court will agree on all details ; hence frequent reversals ; e. g.
1912, State v. Schmulback, 243 Mo. 533, 147 S. W. 966.
74
CONSCIOUSNESS OF GUILT §278
[Notei; add:]
1909, Lowman v. State, 161 Ala. 47, 50 So. 43 (flight of an accomplice, excluded).
The following is of course correct : 1906, Boykin v. State, 89 Miss. 19, 42 So. 601 (that
the county had paid the reward for the arrest of defendant as a fleeing homicide, excluded).
[Note 5; add:]
1913, Goforth v. State, — Ala. — , 63 So. 8 (postcards mailed by the accused shortly after
his departure, admitted to indicate non-concealment of his whereabouts, and thus to rebut
the inference of guilt of a murder from his flight).
1913, State v. Hogg, 64 Or. 57, 129 Pac. 115 (flight to escape a mob).
§ 278. Falsehood, Fraud, Spoliation, etc.
[Text, p. 357 ; after the quotation from R. v. Castro, insert:]
1905, Phillimore, J., in R. v. Watt, 20 Cox Cr. 852 : " The principle is in fact well estab-
lished. ... It is this, that the conduct in the litigation of a party to it, if it is such
as to lead to the reasonable inference that he disbelieves in his own case, may be proved
and used as evidence against him."
[Note 3 ; add, in par. 1 :]
1907, Weaver ». State, 83 Ark. 119, 102 S. W. 713 (affidavit for continuance; repudiating
Burris v. State, 38 Ark. 221, infra, and Polk v. State, 45 id. 165, on the ground that they
were decided when an accused was disqualified to testify).
1906, Bennett v. Susser, 191 Mass. 329, 77 N. E. 884 (a "deUberate misstatement of fact"
by a party on a material point may be considered by the jury "as an admission that his
claim is wrongful" ; but here the instruction was not held demandable.
1905, People v. Hoffmann, 142 Mich. 531, 105 N. W. 838 (false affidavit of continuance).
1906, State v. Jennings, 48 Or. 483, 87 Pac. 624 (false statements).
1893, Tucker v. U. S., 151 U. S. 164, 168, 14 Sup. 299 (affidavit of continuance).
1910, Waller v. U. S., 8th C. C. A., 179 Fed. 810 (feigning insanity).
Contra: 1905, Darrell v. Com., — Ky. — , 88 S. W. 1060 (this astonishing ruling holds that
where the State has avoided a demand for continuance by admitting an affidavit of testi- '
mony of absent witness, the State cannot show that the witness is dead and that the sworn
statement as to his absence was false; compare § 2595, n. 2, post).
The apparent ruUng in Brown v. State, 142 Ala. 287, 38 So. 268 (1904), that the fabrication
of a statement of testimony of an absent witness ("showing ") cannot be proved, where the party
has neither formally introduced the showing nor called the witness, seems erroneous.
Compare the principle oifalstis in una as applied to witnesses {post, § 1008).
[Note 4 ; add :]
1680, Earl of Stafford's Trial, 7 How. St. Tr. 1461, 1479 (that the defendant had tried un-
successfully to bribe a person to come as witness, admitted).
1905, R. V. Watt, 20 Cox Cr. 852 (that the defendant had induced a witness to testify falsely
on a prior day in the same cause, admitted; good opinion by Phillimore, J.).
1905, State v. KoUer, 129 la. Ill, 105 N. W. 391 (adultery; the wife's attempt to dissuade
the husband's witnesses, admitted). 1911, State v. Kimes, 152 la. 240, 132 N. W. 180
(subornation of a witness to perjury).
1904, State v. Gianfala, 113 La. 463, 37 So. 30 (offer of bribe to the deputy to release him).
1905, Dickey v. State, 86 Miss. 525, 28 So. 776 (attempt to suborn perjury).
1904,'Blair v. State, 72 Nebr. 501, 101 N. W. 17 (removal of the prosecutrix).
[Note 5 ; add :]
1907, In re Durant, 80 Conn. 140, 67 Atl. 497 (intimidating a witness ; the witness' deposi-
tion admitted, to show what had led to the intimidation). f
75
§278. CIRCUMSTANTIAL EVIDENCE
{Note 5 — continued]
1910, Minihan v. Boston Elev. R. Co., 205 Mass. 402, 91 N. E. 414 (intimidation of wit-
nesses).
1907, State v. Mathews, 202 Mo. 143, 100 S. W. 420 (threats to dissuade the prosecuting
witness from appearing, admitted).
§ 279.- Other Rules discriminated.
[Note 1, par. 1 ; add, under Accord:]
1904, State v. Aspara, 113 La. 940, 37 So. 883 (false statements as to alibi).
[Text, p. 359 ; add a new paragraph :]
(4) An offer of compromise is in general inadmissible {post, § 1062) ;
hence, in a criminal prosecution, an offer of money to the injured party,
which might otherwise be admissible as an attempt to bribe a witness, may
be inadmissible if construable merely as an offer to redress the wrong.^
^ 1906, Sanders v. State, 148 Ala. 603, 41 So. 466 (rape ; offer of money to the woman's
father).
§ 280. Fraud by Agents.
[Note 2; add:]
1908, Strong v. State, 85 Aik. 536, 109 S. W. 536 (threats against witness for prosecution,
by unknown person, admitted merely to rebut the defendant's allegation that the witness
was testifying under a bias for the State, on the principle).
1907, Eacock v. State, 169 Ind. 488, 82 N. E. 1039 (procuring a witness to leave the State,
by third persons with the defendant's privity, admitted).
1909, Com. V. Min Sing, 202 Mass. 121, 88 N. E. 918 (bribery of four persons, who did not
in fact testify, by a poUce officer assisting in getting evidence, and by an interpreter used by
him, excluded on the facts, no connivance of the prosecuting attorney being "suggested or
suspected by the counsel for the defendant ").
1907, Jeffries v. State, 89 Miss. 643, 42 So. 801 (eloignment of the prosecutrix by the defend-
ant's brother, excluded).
1913, Burnaman v. State, — Tex. Cr. — , 159 S. W. 244 (corrupt offer by the accused's
brother, who was also a witness, held admissible, Davidson, P. J., diss. ; prior cases col-
lected).
§ 282. Taking Precautions to prevent Injury ; etc.
[Note 1 ; add, in a new paragraph :]
So, too, an employer's general rule of conduct for employees may be some evidence against
him, on this principle, as an admission of the standard of care required, where the act of
his employee in violation of the rule is charged against the employer as an act of negli-
gence : 1902, Chicago & A. R. Co. «. Eaton, 194 111. 441, 62 N. E. 784 (cited post, § 283, n.
5, par. 2).
1904, Stevens v. Boston Elev. R. Co., 184 Mass. 476, 69 N. E. 338 ("A rule made by a cor-
poration for the guidance of its servants in matters affecting the safety of others," and its
violation, raises an implication that there was a breach of duty towards the third person
"as well as towards the master who prescribed the conduct that he thought necessary or
desirable for protection in such matters. Against the proprietor of a business the methods
which he adopts for the protection of others are some evidence of what he- thinks necessary
or proper to insure their safety" ; good opinion by Knowlton, C. J., citing authorities).
76
CONSCIOUSNESS OF GUILT §282
[Note 1 — contimted]
1913, Canham v. Rhode Island Co., — Vt. — , 85 Atl. 1050 (collecting the cases').
For the use of otiier persona' regulations, or municipal ordinances, to evidence negligence, see
post, § 461.
[Note 2; add:]
Accord: 1904, Camsusa v. Coigdarripe, 11 Br. C. 177, 192 (action for breach of trust; the
trustee's conveyance of his property pending suit, held a proper subject for cross-examina-
tion).
1907, Pelkey v. Hodgdon, 102 Me. 426, 67 Atl. 218 (mortgage of property, admitted).
181, Heneky v. Smith, 10 Or. 349 (transfer of land, after a shooting, admitted).
1906, State v. Kincaid, 142 N. C. 657, 55 S. E. 647 (seduction ; transfer of property to evade
the result of conviction, admitted).
[Note 3; add:]
Contra: 1904, Darrell v. Com., — Ky. — , 82 S. W. 289 (but here because the charge was
rape, and the defendant admitted the intercourse and alleged consent ; no authority cited).
1913, Bray v. U. S., 39 D. C. App. 600 (seduction; no authority cited).
[Text, p. 363, 1. 1 ; after "occur", insert new note 3a :]
3° 1911, Engel v. United Traction Co., 203 N. Y. 321, 96 N. E. 731 (discharge of motor-
man since the injury, excluded).
The offer of remedial assistance, to an injured person, by one whose apparatus or conduct
has caused the injury or on whose premises the injury has occurred, ought not to be evidence
of an admission of culpable causation.
1908, Binewicz v. Haglin, 103 Minn. 297, 115 N. W. 271 (injury received on a building ; the
defendant's payment of a weekly sum to the injured man's wife, and his promises of further
assistance, admitted, but treated as of little weight).
1914, Grogan v. Dooley, — N. Y. — , 105 N. E. 135 (the plaintiff was injured while in the
employ of the defendant ; the mere fact that the defendant offered to pay the plaintiff's
wages during disability and his physician's bill, held not admissible).
1904, Clarke v. N. Y. N. H. & H. R. Co., 26 R. I. 59, 58 Atl. 245 (setting fire to timber by
locomotives ; that the defendant's employees aided in putting out the fire, held not to allow
an inference).
[Note 4 ; add :]
1909, Hyndman v. Stephens, 19 Man. 187 (excluded).
1908, Longhead v. CoUingwood Shipbuilding Co., 16 Ont. L. R. 64 ("This had been so ruled
by myself and probably other judges, over and over again at nisi prius").
1903, Roche v. Llewellyn I. Co., 140 Cal. 563, 74 Pac. 147 (defendant's insurance against
accidents held inadmissible to evidence negligence, and also to evidence the fact that the
plaintiff was an employee of defendant and not of a third person).
1906, Capital C. Co. v. Holtzman, 27 D. C. App. 125, 138 (the fact of defendant's insurance
against accident, excluded, except as affecting a witness' bias).
1913, Mithen v. Jeffery, 259 111. 372, 102 N. E. 778 (defendant's protection by liability
insurance not being admissible, questions to jurors on voir dire, intended to introduce the
fact indirectly, are improper; prior Illinois cases cited).
1896, Barg v. Bousefield, 65 Minn. 355, 68 N. W. 45 (that defendant was insured against
accidents in a particular mill, admitted solely as an admission that the employees there
working, including the plaintiff, were employees of the defendant and not of a third person).
1908, Gracy v. Anderson, 104 Minn. 476, 116 N. W. 1116 (allowing a questioning of jurors
as to insurance-interests, but not allowing the cross-examination of the defendant on this
subject to affect his credibility, subject to the trial Court's discretion).
77
§282 CIRCUMSTANTIAL, EVIDENCE
[Note 4 — continued]
1913, Zimmerle v. Childers, — Or. — , 136 Pac. 349 (indemnity bond).
1913, Armstrong v. Yakima Hotel Co., 75 Wash. 477, 135 Pac. 232 (questions to jurors
as to connection with indemnity companies, allowed; distinguishing this from questions
.directly intended to advise jurors that the suit was defended by an insurer ; following Hoyt
V. Independent Paving Co., 52 Wash. 672, 101 Pac. 367, and distinguishing Stratton v.
Nichols L. Co., 39 Wash. 323, 81 Pac. 831 ; the distinction is futile ; either the ascertainment
of jurors' interest or the suppression of the fact of iAsurance must frankly be allowed to
prevail; no compromise is worth while).
1906, Chybowski v. Bucyrus Co., 127 Wis. 332, 106 N. W. 833 (offer to prove insurance,
excluded). 1908, Wankowski v. Crivitz P. & P. Co., 137 Wis. 123, 118 N. W. 643 (counsel's
remark as to insurance, held not prejudicial on the facts).
[Note 4, par. 1 ; for "69 Vt. 486," substitute :
"90 Me. 369."
[Note 4 ; insert, after par. 1 :]
But the taking out of a policy may be an admission of ownership, where that is disputed (on
the principle of § 283, note 5, post).
1904, Perkins v. Rice, 187 Mass. 28, 72 N. E. 323 (ownership of an elevator).
[Note 4, par. 2; add:]
and cases cited in §§ 393, 969, post.
§ 283. Repairs after an Injury.
[Note 5; add:]
Ala. . 1904, Jackson L. Co. v. Cunningham, 141 Ala. 206, 37 So. 445 (defective roadbed ;
changes of track-timbers, etc., admitted, to identify other timbers). 1904, Frierson v.
Frazier, 142 Ala. 232, 37 So. 825 (ferry accident, subsequent placing of a rail, admitted only
on cross-examination of a defendant who had testified to that subject). 1904, Davis v.
Kornman, 141 Ala. 479, 37 So. 789 (injury at a machine ; protective construction since the
injury, excluded).
Ark. . 1906, St. Louis S. W. R. Co. v. Plumlee, 78 Ark. 147, 95 S. W. 442 (subsequent removal
of hand-car wheels for safety, excluded). 1907, Bodcaw L. Co. v. Ford, 82 Ark. 555, 102
S. W. 896 (subsequent repairs to a machine, excluded). 1912, St. Louis S. M. & S. R. Co.
V. Steed, 105 Ark. 205, 151 S. W. 257 (repairs of a car, excluded).
Cat. : 1904, Helling v. Schindler, 145 Cal. 303, 78 Pac. 710 (subsequent sharpening of planer's
knives, excluded).
Colo. : 1907, Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 Pac. 922 (subsequent
removal of a pipe-arm causing the injury, excluded).
Ga. : 1902, Georgia S. F. R. Co. v. Cartledge, 116 Ga. 164, 42 S. E. 405 ; in the note now in the
original citation strike out the word "not'' before "however," and the author's comment
"a singularly unjudicial utterance " ; the word "not" was thus erroneously printed in the
advance sheets of 42 S. E. Rep., from which the author took the citation ; but by the
courtesy of W. H. Fleming, Esq., of Augusta, Ga., the author has learned that in the bound
volume and in the official report the judge in revising corrected the error, omitting "not" ,
the author desires here publicly to express his regret for the ill-founded criticism.
la. I 1888, Kuhns v. Wisconsin I. & N. R. Co., 76 la. 68, 72, 40 N. W. 92 (subsequent repairs
of a track, not receivable as "an admission that the track was out of repair"). 1899, Beard
V. Guild, 107 la. 476, 479, 78 N. W. 201 (subsequent repairs to a hack, excluded; no Iowa
cases cited, but three cases from other States). 1899, Frohs v. Dubuque, 109 la. 219, 221,
86 N. W. 342 (subsequent repairs to a sidewalk ; the incidental mention of it, under proper
78
CONSCIOUSNESS OF GUILT §283
[Note 5 — continued]
instructions, held not error). 1904, Cronk v. Wabash R. Co., 123 la. 349, 98 N. W. 884
(subsequent condition of a track, excluded). 1904, See v. Wabash, R. Co., 123 la. 443, 99
N. W. 106 (repairs at a crossing, excluded). 1906, Fitter v. Iowa Tel. Co., 129 la. 610,
106 N. W. 7 (injury by telephone poles ; defendant's subsequent change in method of work,
excluded, in an opinion which at last seems squarely to lay down a general rule against this
evidence; of the above cases, however, only Hudson v. R. Co. is cited). 1907, Patton v.
Sanborn, 133 la. 650, 110 N. W. 1032 (sidewalk; subsequent replacement, here admitted
for other purposes).
Ky. : 1905, Louisville & N. R. Co. v. Morton, 121 Ky. 398, 89 S. W. 243 (defective method
of loading logs ; subsequent safe use of another method, excluded, on the present principle ;
erroneous on the facts, because the principal object was merely to show by experiment that
there was another method which was safe). 1891, Standard Oil Co. v. Tierney, 92 Ky. 367,
17 S. W. 1025 (fire of oil during transit ; subsequent change of mode of shipping, etc., ex-
cluded). 1897, Louisville & N. R. Co. ■». Bowen, — Ky. — , 39 S. W. 31 (precautions at a
crossing; preceding case followed).
Md. : 1906, Ziehm v. United El. L. & P. Co., 104 Md. 48, 64 Atl. 61 (subsequent change in
location of wires, excluded).
Mass. : 1904, Stevens v. Boston Elev. R. Co., 184 Mass. 476, 69 N. E. 338 (rule as to sound-
ing a gong).
Mich. : 1906, Moon v. Pere Marquette R. Co., 143 Mich. 125, 106 N. W. 715 (collision ;
defendant's change of rules to prevent collisions, excluded).
Mo. : 1887, Brennan v. St. Louis, 92 Mo. 488, 2 S. W. 481. 1891, Alcorn v. R. Co., 108 Mo.
90, 1? S. W. 188 (repairs to a switch-block, excluded). 1905, Bailey «. Kansas City, 189
Mo. 503, 87 S. W. 1182 (subsequent repairs to a sidewalk, excluded). 1904, Schermer v.
McMahon, 108 Mo. App. 36, 82 S. W. 536 (excluded).
Nebr. : 1908, Pribbeno v. Chicago B. & 0. R. Co., 81 Nebr. 494, 116 N. W. 494 (subsequent
change of a bridge to prevent a flood, excluded).
N. H. : 1908, Cummings v. Farnham, 75 N. H. 135, 71 Atl. 632 (change in method of work,
not to be a basis of argument).
N. Y.: 1907, Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854 (subsequent repair of a ma-
chine, excluded).
1913, Sloan v. Warrenburg, 36 Okl. 523, 129 Pac. 720 (fall of a telephone pole; improved
method of replacing- it, excluded). 1913, ShawHee G. & E. Co. ji. Motesenbocker, — Okl.
— , 135 Pac. 357 (electric wires ; subsequent improvements of system, .excluded).
1907, Worthy ». Jonesville Oil Mill, 77 S. C. 73, 57 S. E. 634. 1908, Plunkett v. Clearvifater
B. & M. Co., 80 S. C. 310, 61 S. E. 431 (subsequent repairs of machinery, excluded ; "the
question may be regarded as settled, imder the case of Worthy v. Jonesville Oil Mill").
U. S.: 1904, Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 24 Sup. 24 (subsequent
changes, admitted to explain away the evidence of subsequent measurements introduced
by the defendant).
1904, Southern R. Co. v. Simpson, 131 Fed. 705, 711, 65 C. C. A. 544 (custom of whistling
at a crossing since the accident, excluded).
1905, Davidson S. S. Co. v. U. S., 142 Fed. 316, 318, C. C. A. (subsequent precautions as to
a breakwater, excluded). 1907, Armour v. Skene, 1st C. C. A.', 163 Fed. 241 (injury by a
runaway horse ; defendant's discharge of the driver, a year later, not admissible).
Wash.: 1906, Thomson v. Issaquah S. Co., 43 Wash. 263, 86 Pac. 588 (subsequent change
here admitted to show that there was another feasible method of guarding a machine).
Wis. : 1907, Odegard v. North Wis. L. Co., 130 Wis. 659, 110 N. W. 809 (sawmill ; subse-
quent working, excluded).
[Note 6; add:]
1907, Diamond Rubber Co. v. Harryman, 41 Colo. 416, 92 Pac. 922 (sidewalk obstruction).
1904, Perkins v. Rice, 187 Mass. 28, 72 N. E. '323 (like Readman v. Conway).
79
§283 CIRCUMSTANTIAL EVIDENCE
[Xoie 6 — continued]
1887, Brennan v. St. Louis, 92 Mo. 488, 2 S. W. 481 (acts of repair of a highway). 1905,
Bailey i\ Kansas City, 189 Mo. 503, 87 S. W. 1182 (city's repairs, not admitted where con-
trol was conceded).
[Note!; add:]
1907, Brunger v. Pioneer R. P. Co., 6 Cal. App. 691, 92 Pac. 1043 (machine).
1912, Koskoif v. Goldman, 86 Conn. 415, 85 Atl. 588 (admitted as contradictory of certain
expert testimony).
1908, Sample v. Chicago B. & O. R. Co., 233 111. 564, 84 N. E. 643 (subsequent filling of a
hole, admitted to show error in the opponent's photograph).
1909, Consolidated G. E. L. & P. Co. v. State, 109 Md. 186, 72 Atl. 651 (electric wires).
So, also, a change of practice may be admissible to show that the different method was
feasible for avoiding danger.
1911, Fonder v. General Construction Co., 146 Wis. 1, 130 N. W. 884 (change in method of
placing workmen at a derrick).
See, also, where the possibility of several causes requires such description.
1909, Place v. Grand Trunk R. Co., 82 Vt. 42, 71 Atl. 836.
§ 284. Failure to Prosecute, etc.
[Note 1 ; add, under Accord :]
1902, R. V. Higgins, 35 N. Br. 18, 24 (failure of the accused to name G. as the guilty person,
until the accused testified in his own behalf at the trial, admissible).
1908, Louisville & N. R. Co. v. Varner, 129 Ga. 844, 60 S. E. 162 (failure to complain of an
injury, admitted).
1907, Page v. Hazelton, 74 N. H. 252, 66 Atl. 1049 (failure to demand an alleged debt,
though in need of money).
For a, failure to make or file a claim, in answer to a request, etc., as constituting an admis-
sion by silent assent, see post, § 1072.
[Note 3; add:]
Here also must be considered the scarcely distinguishable admissions by silence {post, § 1072)
in failing to include a claim, to deny an opponent's claim, and the like.
[Note 4:; add:]
1908, Louisville & N. R. Co. v. Varner, 129 Ga. 844, 60 S. E. 162 (complaint of injury
uttered to B, not admitted to explain away a failure to complain to A ; unsound).
§ 285. Failure to Produce Evidence.
[Note 2; add:]
1906, Alexander v. Blackman, 26 D. C. App. 541, 551 (inventor's wife and daughter, etc.,
in a patent case).
1908, Georgia F. & A. R. Co. v. Sasser, 4 Ga. App. 276, 61 S. E. 505 (rule applied where
depositions were used, as allowed in this State — see post, § 1415, n. 5 — though the de-
ponents were present in court).
1909, Sullivan v. Girson, 39 Mont. 274, 102 Pac. 320 (diamond ring converted by defendant,
who refused to produce it).
1904, Cliicago, B. & O. R. Co. v. Krayenbuhl, 70 Nebr. 766, 98 N. W. 44 (failure to call
defendant's employee; inference allowed).
1862, Steininger v. Hoch's Ex'r, 42 Pa. 432 (failure to call a witness to the transaction, held '
open to inference). 1893, Hall v. Vanderpool, 156 Pa. 152, 26 Atl. 1069 (title to property
80
CONSCIOUSNESS OF GUILT §289
[Note 2 — continued]
claimed under the plaintiff's father; the plaintiff's failure to call her father, held open to
inference). 1906, Green v. Brooks, 215 Pa. 492, 64 Atl. 672 (title to personalty; the plain-
tiff's failure to call his son, who was in court, held open to inference).
1906, Grunburg v. U. S., 145 Fed. 81, 89, C. C. A. (failure to call employees, inference
allowed).
§ 286. Witnesses not Produced ; Unavailable or Privileged.
[Note 5; add:]
1907, Jamison v. U. S., 7 Ind. Terr. 661, 104 S. W. 872 (wife incompetent for or against the
accused).
1904, Wright v. Davis, 72 N. H. 448, 57 Atl. 335 (a plaintiff disqualified as a survivor to some
of the facts ; the defendant's counsel allowed to allude to the plaintiff's failure to testify
at all, but, on the principle of § 1807, post, not to assert that the defendant would have
waived any disqualification of the plaintiff).
1909, Rhea v. Terr., 3 Okl. Cr. 230, 105 Pac. 314 (the defendant's wife being qualified to
testify for him, but he and she being privileged that she should not testify against him,
his failure to call her was held to be open to inference).
[Note&; add:]
1912, Com. V. Spencer, 212 Mass. 438, 99 N. E. 266 (wife competent but not compellable).
§ 287. Witnesses Prejudiced or Inferior in Value.
[NoU2; add:]
1904, Cavanagh v. Riverside, 136 Mich. 660, 99 N. W. 876 (highway injury; failure to call
the highway overseer; inference not allowed).
1909, Cooper v. Upton, 60 W. Va. 648, 64 S. E. 523.
§ 288. Witnesses equally Available to both Parties.
[Note 1; add:]
1909, Jordan v. Austin, 161 Ala. 585, 50 So. 70.
1906, Mutual Industrial I. Co. «. Perkins, — Ark. — , 98 S. W. 709.
1913, Delaney v. Berkshire St. R. Co., 215 Mass. 591, 102 N. E. 901 (defendant's argument,
calling attention to a statute allowing discovery of witnesses' names, and aiming to rebut
a possible inference that the defendant had the power to produce more witnesses than the
plaintiff, held properly suppressed by the trial court). '
1913, Fulsom-Morris C. & M. Co. v. Mitchell, 37 Okl. 575, 132 Pac. 1103.
1913, Iowa Court R. Co. v. Hampton E. L. & P. Co., 8th C. C. A., 204 Fed. 961 (defendant's
employee).
[Note 3; add:]
1905, Lambert v. Hamlin, 73 N. H. 138, 59 Atl. 941 (employee of defendant, in the city at
the time of trial; inference allowed against the defendant).
§ 289. Party Himself Failing to Testify.
[Note 1; add:]
1911, Du Bose v. Conner, 1 Ala. App. 456, 55 So. 432.
1909, Bone v. Hayes, 154 Cal. 759, 99 Pac. 172 (failure to testify in explanation).
1906, Hull V. Douglas, 79 Conn. 266, 64 Atl. 351 (inference allowed).
81
§289 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued]
1908, Belknap Hardware Cd. v. Sleeth, 77 Kan. 164, 93 Pac. 580 (client's refusal in a dep-
osition to explain, "on advice of counsel," the advice being bad, held open nevertheless
to inference).
1906, Reinhardt v. Mark's Adm'r, — Ky. — , 93 S. W. 32 (but here not applicable, because
the party was disquahfied).
1908, Howe v. Howe, 199 Mass. 598, 85 N. E. 945.
1905, McDonald v. Smith, 139 Mich. 211, 102 N. W. 668.
1913, Powell II. Strickland, 163 N. C. 393, 79 S. E. 872 (like Devries v. Phillips).
1908, Brooks v. Garner, 20 Okl. 236, 94 Pac. 694.
1912, Bonelh v. Burton, 61 Or. 429, 123 Pac. 37.
1911, Fisher v. Travelers' Ins. Co., 124 Tenn. 450, 138 S. W. 316 (of course, this inference
may be made equally well where there are admissions which might be explained away).
1906, Aragon Coffee Co. v. Rogers, 105 Va. 51, 52 S. E. 843 (bona fide purchase of a note by
the plaintiff ; the plaintiff's refusal on the stand to explain his motive for the investment,
held open to inference).
1906, Sears v. Duling, 79 Vt. 334, 65 Atl. 90.
1906, Loverin & B. Co. v. Bumgarner, 59 W. Va. 46, 52 S. E. 1000 (defendant's failure to
testify in denial of letters, etc., though present at the trial, held open to inference).
The same inference may apply to the prosecuting witness in a criminal case : 1905, Morgan
J!. State, 124 Ga. 442, 52 S. E. 748.
[Note 1 ; at the end of par. 1, insert:]
On interrogatories before trial, an answer given after provisional refusal may prevent
this use of the refusal :
1913, Harrington i>. Boston Elev. R. Co., 214 Mass. 563, 101 N. E. 977 (a corporation pres-
ident's answers, as party, to interrogatories, were refused by him, subject to the Court's
direction, later the Coiu-t directed him to answer, and he did so; held, that the reading
of the original refusal to answer was improper).
§ 290. Sundry Distinctions.
[Note2,\. 1; add:]
1905, People «. Davis, 147 Cal. 346, 81 Pac. 718; People v. Lee, 1 Cal. App. 169, 81 Pac.
969 (qualifying the preceding).
1910, State v. Dudley, 147 la. 645, 126 N. W. 812.
1906, Lowdon v. U. S., — C. C. A. — , 149 Fed. 673, 677.
[Note 2, last line ; add :]
1904, Gater v. State, 141 Ala. 10, 37 So. 692.
1908, McDuffee v. State, 55 Fla. 125, 46 So. 721 (approving the above comment).
1911, State V. Gruber, 19 Ida. 692, 115 Pac. 1.
1908, People v. Kemmis, 153 Mich. 117, 116 N. W. 554 ("We approve and adopt the rule
stated by Mr. W.").
1906, People v. Pekarz, 185 N. Y. 470, 78 N. E. 294. 1913, People v. Lingley, 207 N. Y.
396, 101 N. E. 170 (approving the foregoing passage).
1914, Durham v. State, — Tenn. — 163 S. W. 447.
[Note 6, par. 1 ; add :]
1904, People s. McGarry, 136 Mich. 316, 99 B. W. 147.
[Note 8, under Accord; add:]
1905, Starke v. State, 49 Fla. 41, 37 So. 850 (but merely the service of a subpoena does not
suffice, where an attachment for non-appearance was available).
82
CONSCIOUSNESS OF .GUILT § 291
[Note 8 — continued]
1904, Foster v. Atlanta R. T. Co., 119 Ga. 675, 46 S. E. 840 (but the explanation cannot
include a statement that the absent alleged eye-witnesses know nothing of the affair ; this
ruling is over-strict.
1905, Macon R. & L. Co. v. Mason, 123 Ga. 773, 51 S. E. 569.
1905, Warth v. Loewenstein, 219 111. 222, 76 N. E. 378 (why a party's brother had left the
country, allowed). ^
1913, Curtis & G. Co. v. Pribyl, — Okl. — , 134 Pac. 71 (subpoenas for eye-witnesses who
had failed to appear, admitted, as rebutting the inference from failure to call them).
1907, Weidner v. Standard Life & A. Ins. Co., 132 Wis. 624, 113 N. W. 50 (illness of eye-
witnesses, admitted, as explaining the failure to call them).
[Note 9 ; add, at the beginning :]
Accord : 1904, Harrison v. Harrison, 124 la. 625, 100 N. W. 344 (attempting to eloign a witness) .
1905, McDonald v. Smith, 139 Mich. 211, 102 N. W. 668.
1908, State v. Callahan, 76 N. J. L. 426, 69 Atl. 957.
[Note 10; add:]
1908, McDuffee's Adm'x v. Boston & Maine R. Co., 81 Vt. 52, 69 Atl. 124 (brakeman killed ;
the defendant resting without evidence, held that no inference could be based thereon).
Yet it is a tenable view that this doctrine is unsound. Certainly, it is artificial ; and it
tends to obstruct the direct getting at the truth.
§ 291. Documents or Chattels Destroyed or not Produced.
[Nate 1 ; add, under Canada :]
1905, Hale ii. Leighton, 35 N. Br. 256 (a book of entries kept for both parties, but in the
plaintiff's possession; the plaintiff's refusal to produce it, held open to inference, on the
facts, but not merely because he did not produce the original on notice to produce).
[Note 2; add:]
1904, Hannay v. New Orleans Cotton Exch., 112 La. 998, 36 So. 831 (agency for investment ;
inference allowed from failure to produce contemporaneous writings).
1905, Com. V. Bond, 188 Mass. 91, 74 N. E. 293 (forgery; the defendant's destruction of
the proceeds, etc., admitted).
1905, Sullivan v. Sullivan, 188 Mass.' 380, 74 N. E.' 608 (action on a note requiring an attest-
ing witness' signature; an instruction that the defendant's destruction of it would justify
the inference that it was a witnessed note, held proper on the facts).
1879, Jones ». Knauss, 31 N. J. Eq. 609, 614 (declaration of trust destroyed; "shght evi-
dence of the contents of the instrument will usually in such a case be sufficient").
1905, Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294, 60 Atl. 74 (boycott by a union; the
defendant refused to produce its books; held that "the spoliation of evidence . . . cannot
supersede the necessity of other evidence"; on the facts, this ruling was too favorable).
1909, New York C. & H. R. R. Co. v. U. S., 212 U. S. 481, 29 Sup. 304 (corporation's failure
to produce certain books).
1913, In re Herman, D. C. N. D. la., 207 Fed. 594 (destruction of letters by the party
alleging a loan, considered).
1905, Neece v. Neece, 104 Va. 343, 51 S. E. 739 (executor's suppression and concealment
of deceased's title-deeds from the family, held open to inference under the present principle) .
1904, Stout V. Sands, 56 W. Va. 663, 49 S. E. 428 (the suppression is not an admission to the
fullest extent; "there must be some other evidence in support of the claim; a ■prima fade
case must be made"; here said of a contract).
1879, Dimond ». Henderson, 47 Wis. 172, 174 (partner's accounting ; the imperfect method
of keeping the accounts, held to involve this principle against the accountant).
83
§293 CIRCUMSTANTIAL EVIDENCE
§ 293. Conduct as Evidence of. Consciousness of Innocence.
[Note 1 ; add :]
1904, Walker v. State, 139 Ala. 56, 35 So. 1011 (murder; defendant's offer to be taken to
the dying person to see if she identified him, excluded) .
1906, Allen v. State, 146 Ala. 61, 41 So. 624 (voluntary surrenders admissible only as contra-
dicting or explaining evidence of flight).
1904, Thomas v. State, 47 Fla. 99, 36 So. 161 (excluded, where not part of the res gestae).
1909, Bailey v. State, 94 Miss. 863, 48 So. 227 (defendant's refusal to accept an opportunity
to escape from prison, excluded, Whitfield, C. J., diss.).
1909, Hoxie v. Walker, 75 N. H. 308, 74 Atl. 183 (question not decided ; here, the defendant's
expression of indignation on hearing that a detective of the plaintiff was watching the
defendant's house).
1906, Sneed v. Terr., 16 Okl. 641, 86 Pac. 70 (voluntary surrender, excluded).
§ 306. Other Evidential Purposes discriminated.
[Text, par. (3) at the end; add new note 1 :]
^ For the use of an accused's confession of other crimes, see post, § 2100, n. 3.
§ 318. Forgery and Counterfeiting; Law in Various Jurisdictions.
[Note 1; add:]
1894, Langford v. State, 33 Fla. 233, 14 So. 815 (uttering of a note with forged indorsements ;
other prior and subsequent utterings of notes with forged indorsements, etc., admitted to
show knowledge and intent; knowledge of the others being forgeries,' at the time of the
uttering charged, need not be expressly shown).
1905, Wooldridge v. State, 49 Fla. 137, 38 So. 3 (forgery of school warrants ; forgery of other
similar warrants, admitted to show intent).
1906, Pittman v. State, 51 Fla. 94, 41 So. 385 (rule of Langford v. State applied).
1907, State- v. Calhoun, 75 Kan. 259, 88 Pac. 1079 (forgery of a note ; forgery of similar
notes transferred at the same time, admitted).
1905, People v. Peck, 139 Mich. 680, 103 N. W. 178 (embezzlement; a certain receipt from
W. offered by the defendant was alleged to be forged ; the forgery of other documents as
W.'s, excluded).
1907, State v. Stark, 202 Mo. 210, 100 S. W. 642 (forgery of a deed; possession of another
forged deed to the same land, admitted).
1906, State v. Newman, 34 Mont. 434, 87 Pac. 462 (forgery of bounty certificates ; other
forged certificates, admitted).
1904, People v. Weaver, 177 N. Y. 434, 69 N, E. 1094 (other forged notes, not admitted on
the facts; Werner, J., diss.). 1906, People v. Dolan, 186 N. Y. 4, 78 N. E. 569 (forgery of
a note ; utterance of other forged notes in the same and other names, admitted to show
knowledge, and also to show a general, plan; People v. Weaver, distinguished).
1908, State v. Murphy, 17 N. D. 48, 115 N. W. 84 (forgery of tax-receipts; other similar
forgeries of receipts for taxes from the same and another taxpayer, admitted).
1907, State v. Kelliher, 49 Or. 77, 88 Pac. 867 (forgery of school-land certificate papers;
joint-indictee's forgery of numerous similar documents, not admitted on the facts).
1903, Withaup v. U. S., 127 Fed. 530, 531, 62 C. C. A. 328 (forgery of a pension-check in-
dorsement; forged vouchers, etc., admitted as evidencing a "single scheme to defraud").
1904, Bryan v. U. S., 133 Fed. 495, 66 C. C. A. 369 (uttering counterfeit 5-cent pieces, pos-
session of a mold for counterfeit 25-cent pieces, admitted). 1905, Dillard v. U. S., 141 Fed.
303, 308, C. C. A. (forgery of Chinese immigrant duplicate certificates ; other forged dupli-
cate certificates admitted to show intent). 1912, Ex parte Schorer, C. C, 197 Fed. 67, 77
(extradition; other uttering of similar forged acceptances, held sufficient on the facts,'
quoting § 312, supra).
84
INTENT, ETC., FROM OTHER OFFENCES §321
§ 321. False Pretences or Representations; Law in Various Jurisdictions.
[Note 1; add:]
1904, R. V. Wyatt, 20 Cox Cr. 462, 1 K. B. 188 (obtaining credit for lodging, etc., under
false pretences to W. ; the facts that the accused had left other persons' apartments while
in debt to them were admitted to show a fraudulent system and to negative mistake or
honest motive). 1905, R. v. Smith, 20 Cox Cr. 804 (obtaining credit on false pretences as
agent of M., the defendant alleging that he had merely given M.'s name as a reference, his
representations to another vendor a few days later that he was agent of M. were admitted ;
R. V. Wyatt commented on; R. v. Holt discredited). 1909, Fisher's Case, 3 Cr. App. 176
(obtaining a car, pony, and harness by false pretences ; an instance of obtaining a horse by
false pretences, held admissible, but instances of obtaining on credit fraudulently fodder
and provender, excluded ; this ruling, quite unsound on principle, is like a revival of the
old-fashioned vain subtleties ; indeed, it is a stricter ruling than would have been rendered
a century ago; on appeal, [1910] 1 K. B. 149,, reversed, on the correct ground that the
evidence was of other false representations not sufficiently similar to show a system of
swindling by the same method). 1910, R. v. Ellis, 2 K. B. 747 (false pretences by an art-
dealer in mis-stating the purchase-cost of an article ; two other false pretences to the same
buyer, during the preceding nine years, as to the genuineness of articles sold, held not
admissible). 1910, Charlesworth's Case, 4 Cr. App. 167 (false pretences as to a fortune ;
other pretences to another person two years before', admitted on special grounds).
1911, Edinburgh Life Ass. Co. v. Y., 1 Dr. R. 306 (action to set aside a policy issued on
fraudulent representations of a peculiar sort; similar representations made in obtaining
other policies from the same and other companies, held admissible, but only after amend-
ment of the plaintiff's pleadings).
1913, Partridge v. U. S., 39 D. C. App. 571 (false pretences as to a stock guaranty; similar
false representation to another person, admitted on the facts).
1909, People v. Weil, 243 111. 208, 90 N. E. 731 (confidence game, here by borrowing money
through impersonation; prior use of the same trick on another persOn, admitted).
1905, Johnson v. State, 75 Ark. 427, 88 S. W. 905 (conspiracy to cheat by betting on a race;
similar acts, including subsequent ones, admitted to show intent).
1905, Malley Co. v. Button, 77 Conn. 571, 60 Atl. 125 (goods procured by false representa-
tions; other similar representations to other stores, excluded).
1905, State v. Seligman, 127 la. 415, 103 N. W. 357 (false pretences as life insurance agent ;
other similar transactions with other persons, admitted to show intent). 1906, Elbert v.
Mitchell, 131 la. 598, 109 N. W. 181 (fraudulent representations as to hogs sold; similar
false representations to other persons, admitted for the plaintiff to show intent or scienter,
but similar honest transactions with others, not admitted for the defendant). 1908, Gibson
T. Seney, 138 la. 383, 116 N. W. 325 (other false representations to other persons, as to a
right of way, admitted).
1906, State v. Briggs, 74 Kan. 377, 86 Pac. 447 (false pretences as to real estate loans; simi-
lar pretences to other persons, admitted).
1912, People's Bank v. Reid, 86 Kan. 245, 120 Pac. 339 (fraudulent notes ; similar transac-
tions with other persons, admitted).
1905, Com. V. Clancy, 187 Mass. 191, 72 N. E. 842 (false pretences concerning a business
sold ; other similar transactions admitted, on the theory of conspiracy ; Com. v. Jackson
distinguished).
1905, People v. Hoffmann, 142 Mich. 531, 105 N. W. 838 (obtaining money by false vouchers
for inquests; similar false vouchers, admitted to show knowledge and intent).
1904, State v. Boatwright, 182 Mo. 33, 81 S. W. 450 (false pretences by a fake race ; other
fake races, etc., more than a year before, excluded). 1907, State v. Roberts, 201 Mo. 702,
100 S. W. 484 (fraud in exchange of lands for goods ; similar fraud on another person about
the same time, admitted to show intent) . 1913, State v. Foley, 247 Mo. 607, 153 S. W. 1010
(false pretences ; other similar frauds, admitted).
85
§321 CIRCUMSTANTIAL EVIDENCE
[Note 1 — coniirmed]
1907, Crosby v. Wells, 73 N. J. L. 790, 67 Atl. 295, 301 (fraud as a defence to an investment-
contract; similar false representations as to the same investment, made to other persons,
admitted).
1911, Dyer v. U. S., C. C. A., 186 Fed. 614 (using the mails to defraud, by false representa-
tions as to medical skill and eminence ; the prosecution was not allowed to show that the
defendant had been three times convicted of various crimes in the U. S. and other times in
England ; either counsel or court missed the real point of objective here, for obviously the
prosecution, in showing the gross falsity of the representations that the defendant was
a " noted expert " and "one of the greatest living specialists " in certain diseases, was en-
titled to show the defendant's life-events to be of the opposite character).
1906, State v. Oppenheimer, 41 Wash. 630, 84 Pac. 688 (obtaining money by false pre-
tences ; the obtaining from various other parties by similar false pretences, excluded, be-
cause not shown to be part of a scheme, following State v. Bokien and the unsound Massa-
chusetts doctrine ; it is a pity that this over-strict ahd unpractical rule should be approved
instead of repudiated).
1903, Baker v. State, 120 Wis. 135, 97 N. W. 566 (false pretences ; certain other pretences
and Ues, excluded). 1904, Standard Mfg. Co. v. Slot, 121 Wis. 14, 98 N. W. 923 (contract;
plea, false representations; similar representations to others, excluded, intent being im-
material).
§ 326. Knowing Possession or Receipt of Stolen Goods ; Law in Various
Jurisdictions.
[Note 1 ; add, at the end of the English cases :]
Further rulings are :
1909, Powell's Case, 3 Cr. App. 1 (the limitations of St. 34-35 Vict. c. 112, § 19 do not
apply to proof of possession of other stolen goods offered to rebut evidence of honest intent).
[Note 1 ; add, under American cases :]
1904, Schultz V. People, 210 111. 196, 71 N. E. 405 (receiving stolen rings; W. having stolen
five or six rings, and D. having shown them all to the defendant, she purchased the two in
issue ; held error to offer the others in evidence ; this is an over-strict ruling, especially as
the opinion ignores the purpose of the evidence to show knowledge). 1907, Lipsey v.
People, 227 111. 364, 81 N. E. 348 (receiving stolen goods, — here, electric light sockets ; the
delivery of another quantity of such goods about the same time, held admissible, citing one
N. Y. case and a loose generality from a treatise, and ignoring the foregoing case).
1905, Beuchert v. State, 165 Ind. 523, 76 N. E. Ill (that "other stolen goods" were found,
is admissible; here, on a charge of possessing bars of steel stolen from B., the possession of
watches and jewelry stolen from other persons was admitted).
1905, State v. Levich, 128 la. 372, 104 N. W. 334 (receipt of other stolen goods from the
same person, admissible).
1914, Com. V. McGarvey, 158 Ky. 570, 165 S. W. 973 (knowing receipt of stolen goods;
possession of other kinds of stolen goods, admitted, without showing knowledge that the
other goods were stolen).
1914, State v. Cohen, — Mo. — , 162 S. W. 216 (receipt of stolen property; other receipt of
different kinds of stolen property from the same person, admitted, without evidence of
knowledge of their stolen character).
1913, Kaufman v. State, — Tex. Cr. — , 159 S. W. 58 (concealing stolen property ; purchase
and concealment of other goods of various sorts obtained from sundry owners by the same
set of thieves, admitted as showing system).
1909, State v. Winter, 83 S. C. 251, 65 S. E. 243 (prior receipt of similar goods, not knowing
them to have been stolen, admitted).
86
INTENT, ETC., FROM OTHER OFFENCES §341
[Note 1 — continued]
1888, State v. Jacob, 30 S. C. 131, 8 S. E. 698 (like State v. Winter).
1909, Sapir v. U. S., 2d C. C. A., 174 Fed. 219 (receiving stolen property with knowledge;
here, pieces of brass ; receipt of other pieces of brass, etc., from another person, before and
after, admitted).
§ 331. Embezzlement.
[Note 1 ; add, under Florida :)
1904, Eatman v. State, 48 Fla. 21, 37 So. 576 (embezzlement; prior conversions of other
sums collected for the same employer, admitted to show intent).
1905, State v. Carmean, 126 la. 291, 102 N. W. 97 (other transactions, held inadmissible
on the facts).
1908, Morse v. Com., 129 Ky. 294, 111 S. W. 714 (embezzlement; other embezzlements
admitted, with certain too refined distinctions as to the purpose).
1914, Com. V. Dow, — Mass. — , 105 N. E. 996 (embezzlement from a corporation ; trans-
actions with another corporation whose accounts were connected, admitted).
1912, State v. Hall, 45 Mont. 498, 125 Pac. 639 (embezzlement; other offences of the same
nature, admitted).
1906, State v. Newman, 73 N. J. L. 202, 62 Atl. 1008 (embezzlement of timber; another
act of the same sort, excluded; erroneous on the facts).
1911, Carter v. State, 6 Okl. Cr. 232, 118 Pac. 264 (embezzlement; other similar offences, ■
admissible, if a part of a system, to show that the defendant did take the money).
1912, State v. Downer, 68 Wash. 672, 123 Pac. 1073 (embezzlement; subsequent similar
acts, admitted; prior rulings collected and explained).
§ 334. Transfers in Fraud of Creditors.
[Note 1 ; add :]
1905, Fabian v. Traeger, 215 111. 220, 74 N. E. 131 (sale in fraud of creditors ; another sale
at the same time, admitted to show the intent).
1904, Kaufman v. Tredway, 195 U. S. 271, 25 Sup. 33 (preference to a brother under the
bankruptcy act ; certain transactions six or seven months before, admitted to show knowl-
■edge).
§ 338. Other Fraudulent Transfers.
[Note 1; add:]
1912, Welch V. Barnett, 34 Okl. 166, 125 Pac. 472 (fraud and undue influence in persuading
an Indian to execute his will in favor of the petitioner, a white man ; similar transactions
with four other Indians, admitted; sensible opinion by Ames, C).
§ 340. False Claims ; Fraudulent Insurance.
[Note 1; add:]
1906, State Life Ins. Co. v. Johnson, 73 Kan. 567, 85 Pac. 597 (insurance fraud).
§ 341. Sundry Frauds.
[Note 2; add:]
1904, Howard v. State, 72 Ark. 586, 82 S. W. 196 (false warrants by a county clerk ; similar
warrants to other persons, admitted to show intent).
87
§341 CIRCUMSTANTIAL EVIDENCE
[Note 2 — continued]
1910, People v. Tomalty, 14 Cal. App. 224, 111 Pac. 513 (falsification of accounts; othei
similar offences, admitted).
1913, State v. O'Neil, 24 Ida. 582, 135 Pac. 60 (false report by a bank officer; other false
reports admitted).
1912, People v. Marrin, 205 N. Y. 275, 98 N. E. 474 (notary charged with knowingly
making a false certificate of acknowledgment of mortgage by J. C. ; to show that J. C.
was a myth, or to show knowledge by defendant of the false personation by the acknowl-
edger, eight other instances were admitted of false certificates by defendant of acknowledg-
ments by different other persons; three judges dissenting).
1913, Kettenbach, U. S., 9th C. C. A., 202 Fed. ^77 (false entry by bank officer; false
reports to the U. S. Comptroller, seven years prior, admitted).
[Note 3; add:]
1905, Yakima V. Bank !). McAllister, 37 Wash. 566, 79 Pac. 1119 (action on a note ; defence,
that the signature was made by signing another document under which the defendants
had fraudulently placed the note; other similat frauds by the defendants upon other
persons, admitted to show a general scheme).
[Note 4 ; add :]
1906, Packham v. Glendmeyer, 103 Md. 416, 63 Atl. 1048 (the testatrix left three wills;
on an issue of fraud as to one of them, fraud as to another by the same parties was not
admitted on the facts).
1909, Harris v. Delaware L. & W. R. Co., 77 N. J. L. 278, 72 Atl. 50 (forfeiture of a per-
sonal ticket for knowing misuse ; the misuse on other occasions, admitted).
1904, Balliet v. U. S., 129 Fed. 689, 693, 64 C. C. A. 201 (fraudulent use of the mails ; sundry
reports, etc. of defendant, admitted). 1908, Jones ». U. S., 9th C. C. A., 162 Fed. 417,
427 (conspiracy to obtain land-grants by fraudulent homestead claims ; other instances
of similar fraudulent claims by defendants in connivance with other persons, admitted).
1910, Jones v. U. S., 9th C. C. A., 179 Fed. 584, 610 (fraudulent acquisition of public
lands; similar transactions in another part of the State and by a different method,
admitted). 1912, Marshall v. U. S., C. C. A., 197 Fed. 511 (fraudulent use of the mails
in connection with a fraudulent society ; the defendant's fraud in another like scheme at
the same time, excluded, on not very intelligible grounds). 1914, Lueders v. U. S., 9th
C. C. A., 210 Fed. 419 (concealment of bankrupt's estate; concealment of other property,
admitted).
1905, Murray v. Moore, 104 Va. 707, 52 S. E. 381 (conspiracy to defraud ; certain letters
as to other fraudulent devices, excluded).
§ 342. Perjury.
[Note 1 ; add :]
1908, WilUamson v. U. S., 207 U. S. 425, 28 Sup. 163 (conspiracy to suborn perjury in pro-
ceeding for the purchase of U. S. public lands ; acquisition of State school lands by simi-
lar methods, admitted to show motive or intent).
§ 343. Bribery.
[Note 2; add:]
1905, Haynes v. Com., 104 Va. 854, 52 S. E. 358 (bribery of an officer while under arrest
on a charge of keeping a disorderly house; the defendant's acts of prostitution of little
girls in the house, excluded).
1912, State v. Wappenstein, 67 Wash. 502, 121 Pac. 989 (bribe-taking, to abstain from
88
INTENT, ETC., FROM OTHER OFFENCES §347
[Note 2 — continued]
enforcing the law against houses of ill-fame ; receipt of bribes as to houses other than the
two charged, admitted).
[Note 3; add:]
1906, Shelburne and Queen's Election Case, Cowie v. Fielding, 37 Can. Sup. 604 (avoid-
ance of election in 1904 for corrupt practices of agents ; the agents' corrupt acts at a 1900
election, adopted by the respondent, not admitted to show their agency for him in 1904,
or as evidence of system).
1910, People v. Ruef, 14 Cal. App. 576, 114 Pac. 54 (bribery of a supervisor ; other bribes
admitted as a part of the same plan). 1910, People v. Glass, 158 Cal. 650, 112 Pac. 281
(bribery of supervisors in San Francisco, operations of the defendant company in Oakland,
an adjacent city, excluded, on the ground that the transactions were offered only "to
besmirch and degrade the defendant," and not to evidence motive, plan, or the like; as
a sample of the unconscious inconsistency of the Court's attitude may be noted its assevera-
tion that "it was not offered to show motive," followed in a few sentences by the assertion
that it was offered to show that the defendant ".had gone to the borderline of crime in the
Oakland transaction and found that stopping there his efforts to prevent competition were
without success," and hence " when the same problem arose in San Francisco . . .he
became a lawbreaker and a criminal" ; obviously, as the Court thus puts it, the failure in
the Oakland transaction furnished a reason and motive in the choice of measures to be used
in San Francisco ; so that, by the Court's own way of putting it, the evidence clearly was
admissible ; two judges diss, on one or more points ; the opinion of the majority exhibits
signs of puffing and hard breathing in its labored efforts to state their case for reversal ;
it is unfortunate that this Supreme Coiu-t and others have been so tender on behaff of
persons charged with bribery that the inherent difficulties of conviction thus become
almost insuperable; this tendency of Courts to construe narrowly the present principle
is noticeable throughout the decisions here collected ; the spot is a putrid one in the law
of evidence).
1904, State v. Schnettler, 181 Mo. 173, 79 S. W. 1123 (municipal officer receiving a bribe
for a street railway bill ; receipt of another bribe for a lighting bill, admitted, as part of a
general scheme).
1914, People v. Duffy, — N. Y. — , 105 N. E. 839 (bribery by a police sergeant; other col-
lections of money from other persons for the same purpose, admitted).
§ 347. Larceny ; Law in Various Jurisdictions.
[Note I; add:]
1911, Adamson's Case, 6 Cr. App. 205 (larceny by trick; similar offence a week later,
admitted).
1910, State v. Effler, 25 Del. 92, 78 Atl. 411 (larceny by trick; similar trick^with other
persons about the same time, admitted). 1913, Effler v. State, — Del. — ,85 Atl. 731
(conspiracy to steal by trick ; similar trick three months later, done upon another person,
excluded ; clearly unsound ; the opinion misconceives the distinction between intent and
identity).
1905, Ryan v. U. S., 26 D. C. App. 74, 83 (larceny of a trunk; possession of a forged letter,
held inadmissible).
1902, Bishop v. State, 194 111. 365, 62 N. E. 785 (larceny of wire ; larceny of other similar
wire, excluded on the facts).
1905, Clampitt v. U. S., 6 Ind. T. 92, 89 S. W. 666 (larceny; possession of other similar
stolen property, admissible).
1905, Bank of Irwin v. American Exp. Co., 127 la. 1, 102 N. W. 107 (loss of a package of
money; that the bank had suffered recently from thefts of an unknown employee, ex-
89
§347 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued]
eluded). 1906, Mier v. Phillips F. Co., 130 la. 570, 107 N. W. 621 (action for coal mined
by the defendant underneath the plaintiff's land by crossing the boundary of the de-
fendant's land; the fact that defendant had also mined under H.'s land adjacent was
excluded; the present principles are ignored; R. v. Bleasdale, supra, not cited).
1905, Seymour v. Bruske, 140 Mich. 244, 103 N. W. 613 (conversion of logs ; defendant's
"general business of converting the logs of other people in this lake," excluded ; erroneous).
1906, State v. Allen, 34 Mont. 403, 87 Pac. 177 (larceny of horses ; other larcenies of horses
about the same time, admitted).
1909, Terr. v. West, 14 N. Mex. 546, 99 Pac. 343 (larceny of a horse; stealing and selling
of other horses, admitted).
1913, People v. Katz, 209 N. Y. 311, 103 N. E. 305 (larceny by manipulation of stocks;
similar proposal made about the same time, admitted to show intent).
1907, Chitwood v. U. S.,8th C. C. A., 153 Fed. 551 (secreting, and stealing mail contents;
defendant's destruction of mail by burning shortly before, admitted to evidence intent).
1913, State v. Bowen, — Utah — , 134 Pac. 623 (larceny of a cow from B. ; theft of five
other cattle and a horse, as shown by the defendant's possession of their hides, without
showing that any of them were stolen, held inadmissible; the opinion carelessly fails to
make clear whether the other thefts, if duly evidenced, would have been admissible).
§ 348. Larceny ; Sundry Limitations.
[Text, p. 428, 1. 8, from the top ; omit the word "radical," and add in Note 1, at the end :]
No doubt it would be fairer to the cause of the defendant to exclude the evidence, if he
does not propose to make any issue as to intent or inadvertence. But if the State should
therefore wait till the defendant's case was put in, so as to find out whether such an issue
is to be met by him, the State would then presumably be met by his objection that new
matter cannot be first introduced on rebuttal (post, § 1873), and would thus be prevented
from using the evidence at all. Either, then, (1) the rule for the scope of rebuttal must
be liberally construed for the State in such cases; or (2) the accused must be required
to announce, before the State closes, whether he will make an issue on the point of Intent
(both of which alternatives seem improbable of acceptance) ; or (3) the rule must stand as
stated in the text.
The above qualification was called forth by comments by H. H. Coleman, Esq., of Vicks-
burg. Miss.
§ 349. Kidnapping.
[Note 1 ; add:]
1913, People v. Pettanza, 207 N. Y. 560, 101 N. E.,428 (kidnapping; kidnappmg of an-
other boy, not admitted, on the facts).
§ 351. Robbery and Burglary.
[Note 3; add:]
1905, State v. Rudolph, 187 Mo. 67, 85 S. W. 584 (murder during robbery; the deceased's
presence under a warrant for the accused for another robbery, admitted).
[Note 4; add:)
1904, State v. Donavan, 125 la. 239, 101 N. W. 122 (burglary; the finding of goods stolen
from other parties, admitted).
1913, State v. Wheeler, 89 Kan. 160, 130 Pac. 656 (burglary; other burglaries, with which
the defendant was not shown to be associated, held improperly admitted).
90
INTENT, ETC., FROM OTHER OFFENCES §357
[Note 4 — continued]
1909, People v. Burke, 157 Mich. 108, 121 N. W. 282 (blowing up a bank; conviction for
a similar crime in 1904 in Indiana, excluded).
1907, State v. Toohey, 203 Mo. 674, 102 S. W. 530 (burglary of a sleeping-car; burglary
of another car, coupled to the former, at the same time, admitted).
1904, People v. Loomis, 178 N. Y. 400, 70 N. E. 919 (confession of another burglary, not
admitted on the facts) .
1907, Herndon v. State, 50 Tex. Cr. 552, 99 S. W. 558 (burglary; possession of goods sto-
len from another house, excluded on the facts).
§ 352. Extortion and Blackmail.
[Note 2; add:]
1907, Eacock v. State, 169 Ind., 488, 82 N. E. 1039 (conspiracy to blackmail K. ; other
conspu-acies to blackmail, admitted) ;
1908, State v. Routzahn, 81 Nebr. 133, 115 N. W. 759 (blackmail, by a chief of police,
levied on a prostitute; the payment of such sums to the defendants by other prostitutes,
held admissible).
§ 354. Arson.
[Note 6; add:]
1911, R. V. Wilson, 4 Alta. 35 (arson to defraud; proposal to lure a third person, nine
months before, to bum a building of the defendant, admitted).
1904, Mitchell v. State, 140 Ala. 118, 37 So. 76 (arson of H.'s house ; the arson of the house
of H.'s brother on the same night, admitted).
1914, Kahn v. State, — Ind. — , 105 N. E. 385 (arson ; another fire in defendant's premises,
five years before, excluded).
1906, Raymond v. Com., 123 Ky. 368, 96 S. W. 515 (arson of the barn of V., landlord of
R. ; the defendant was subtenant of R., and had been evicted by R. at the instigation of
v.; the burning of R.'s barn four weeks before, excluded; flagrantly erroneous, the de-
fendant having threatened to get even with both R. and V. ; Hobson, C. J., diss.).
1905, Palatine Ins. Co. v. Santa Fe M. Co., 13 N. M. 241, 82 Pac. 363 (fraudulent arson;
former burning of the plaintiff's goods after increase of insurance, one year and a half
before, excluded).
1914, People v. Grutz, — N. Y. — , 105 N. E. 843 (arson to obtain insurance-money ; com-
plicity in nine other arsons fqr the same purpose, not admitted on the facts ; three judges
diss.).
§ 357. Rape.
[Note 1 ; add, under Rape:]
1912, R. V. Paul, Alta. S. C, 5 D. L. R. 347 (rape ; similar act done by defendant to the
prosecutrix' sister, a few minutes before, excluded).
1905, Funderburk v. State, 145 Ala. 661, 39 So. 672 (rape ; subsequent intercourse with the
woman's consent, on the same evening, not admissible for the State).
1904, State v. Trusty, 122 la. 82, 97 N. W. 989 (rape; prior intercourse, etc., admitted).
1904, State v. Carpenter, 124 id. 5, 98 N. W. 775 (similar).
1906, State v. Crouch, 130 la. 478, 107 N. W. 173 (rape of an imbecile ; defendant's prior
lascivious conduct towards the prosecutrix, admitted).
1910, Smith v. Hendrix, 149 la. 255, 128 |>J. W. 360 (civil action for rape ; former assault
on the woman, admitted).
91
§357 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued]
1904, State v. Johnson, 111 La. 935, 36 So. 30 (rape; that the defendants broke and
entered another house near by on the same night, admitted, to show proximity and
intent).
1904, State v. Lewis, ll2 La. 872, 36 So. 788 (former rapes and threats of rape upon
the same woman, offered to show her state 'of fear and submission ; not expressly ruled
upon).
1905, State v. Hummer, 72 N. J. L. 328, 62 Atl. 388 (carnal abuse ; charges by other girls
against the defendant, here admitted merely to explain away the impeachment of the
police oEBcer's testimony).
1905, Harmon v. Terr., 15 Okl. 147, 79 Pac. 765 (rape of another woman at the same time,
by other men in the defendant's company, admitted).
1914, State v. Jensen, — Or. — , 140 Pac. 740 (assault with intent to rape a child ; another
assault on a different girl at another time and place, excluded).
1909, State v. WiUiams, 36 Utah 273, 103 Pac. 250 (rape under age; the defendant's simi-
lar dealing with other little girls, excluded).
[Note 1 ; add, under Assault toith Intent :]
1913, Rodley's Case, 9 Cr.- App. 69, 3 K. B. 468 (burglary with intent to rape ; defendant's
entry of another house on the same night and having intercourse with a woman, not ad-
mitted under the circumstances).
§ 359. Abortion.
[Note 5 ; add :]
1906, R. V. Bond, 2 K. B. 389 (abortion; the use of similar instruments upon another
woman three months later, to procure a miscarriage, admitted on the facts ; two judges
dissenting; it is rather odd that neither counsel nor any of the seven judicial opinions,
though canvassing the related precedents, cites the above ruling of R. v. Perry, which
appears to be the only prior one in England on this precise crime).
1912, Thomson's Case, 7 Cr. App. 276 (abortion in March, 1912; operation on the same
woman for another pregnancy in September, 1911, admitted).
1909, R. V. Pollard and Tinsley, 19 Ont. L. R. 96 (performance of an abortion upon another
person some weeks before, not admitted, though the defendant acknowledged the act and
the only issue was lawful piu'pose).
1913, State v. Brown, — Del. — , 85 Atl. 797 (abortion ; another abortion, near the same
time, upon another woman, admitted to evidence intent, but not design).
1904, Sullivan v. State, 121 Ga. 183, 48 S. E. 949 (prior unsuccessful attempts on the same
female, admitted).
1906, Clark v. People, 224 111. 554, 79 N. E. 941 (murder in attempting abortion ; testi-
mony by five or six persons that the defendant during several years preceding had "solic-
ited patronage and held herself out as being able and willing to commit abortion," etc.,
admitted to show intent). 1908, People v. Hagenow, 236 111. 514, 86 N. E. 370 (abortion;
the defendant's advertisements as a professional abortionist, and her habitual performance
of abortions, admitted to show intent and means).
1913, Avery v. State, 121 Md. 229, 88 Atl. 148 (abortion; that the accused on the occasion
of the woman's first visit had connection with another woman who accompanied her, ex-
cluded).
1905, People v. Hodge, 141 Mich. 312, 104 N. W. 599 (manslaughter by abortion; per-
formance of a similar operation upon a third person for the purpose of an abortion, ad-
mitted).
1912, State v. Pryor, 67 Wash. 216, 121 Pac. 56 (abortion ; rape, and sodomy by the defend-
ant upon the same woman, excluded).
92
INTENT, ETC., FROM OTHER OFFENCES §363
§ 360. Indecent Exposure, Sodomy, Bigamy, etc.
[Note 2; add:]
1912, People v. Swift, 172 Mich. 473, 138 N. W. 662 (sodomy; two prior acts, admitted).
1913, State v. Start, 65 Or. 178, 132 Pac. 512 (sodomy ; other similar acts with other per-
sons at other times, excluded ; the majority opinion indulges in some misplaced sentimen-
tality which might have been spared, such as "the law will pursue him with the vindictive
zeal of a Javert"; the dissenting opinion, by McBride, C. J.; frankly would admit the
evidence to indicate "that he possessed that abnormal moral nature that was equal to
committing the act charged" ; this would mean a large inroad upon the character rule,
and indeed the learned Chief Justice avows that "the necessity for many of these archaic
rules has ceased, and they may well be relegated to the scrapheap of unnecessary judicial
machinery"; to which we may thankfully agree, with the saving request that a dignified
historical museum, not the despised scrapheap, be the place of consignment).
1913, State v. McAllister, — Or. — , 136 Pac. 354 (crime against nature ; commission of
the same act with other boys, excluded, following the majority opinion in State v. Start ;
McNary, J., diss., in one able opinion).
[NoteS; add:]
1909, Robinson «. 'State, 6 Ga. App. 696, 65 S. E. 792 (bigamy; arrest for beating his
first wife eight years before, excluded).
§ 363. Homicide.
[Note 10; add:]
Murder by violence: 1913, R. v. Gibson, 28 Ont. L. R. 525, 13 D. L. R. 393 (murder
of R. while bargaining for the sale of junk ; felonious assault on D., the companion of
R., a few minutes later, held admissible). 1913, Rice v. People, — Colo. — , 136 Pac. 74
(assault and battery; the defendant's admission, "This has been going on for 7 years,"
received).
1914, Frank v. State, — Ga. — , 80 S. E. 1016 (murder of a woman on the deceased's
premises ; prior lascivious conduct at similar stated periods with women on the premises,
held admissible to show motive).
1904, Terr. v. Watanabe, 16 Haw. 196, 221 (murder ; testimony as to the defendant's black-
mailing, etc., admitted, presumably to show a general plan).
1905, Brown v. People, 216 111. 418, 74 N. E. 790 (murder of R. ; an assault in another
room, a few minutes before, on M., excluded; unsound). 1914, People v. Pfanschmidt,
262 111.411, 104 N. E. 804 (mimler with arson; evidence of plans for a bank robbery
having no relation to the murder, excluded).
1905, Shepherd v. Com., 119 Ky. 931, 85 S. W. 191 (murder; defendant's admission that
"he is the third one I have knocked down," excluded).
1909, State v. Blount, 124 La. 202, 50 So. 12 (murder; killing of two other persons at the
same time, admitted).
1905, Com. V. Snell, 189 Mass. 12, 75 N. E. 75 (murder of K., who lived with H. ; the de-
fendant's plan to murder H., against which K.'s presence was an obstacle, etc., admitted).
1909, People v. Klise, 156 Mich. 373, 120 N. W. 989 (assault with intent ; prior assault on
a third person, excluded).
1905, State v. Brown, 188 Mo. 451, 87 S. W. 519 (murder ; assault on a hackman the same
evening, excluded; on the facts, the ruling is an extreme example of morbid phantas-
magoria). 1905, State v. Bailey, 190 Mo. 257, 88 S. W. 733 (murder of a non-union hack-
driver; assault and robbery of another such driver just before, admitted).
1907, Clark v. State, 79 Nebr. 473, 113 N. W. 211 (murder while robbing; other robberies
on the same night by the same gang, held admissible).
93
§363 CIRCUMSTANTIAL EVIDENCE
[Note 10 — continued]
1904, People v. De Garmo, 179 N. Y. 130, 71 N. E. 736 (manslaughter by beating a child ;
certain former acts of violence to the same child, not admitted : an over-strict ruling).
1908, People v. Governale, 193 N. Y. 581, 86 N. E. 554 (murder while being arrested ; prior
shooting affray leading to the pursuit, admitted on the issue of self-defence).
1905, State v. Adams, 138 N. C. 688, 50 S. E. 765 (murder of M. B. ; the killing of her
two children at the same time, admitted). 1910, State v. Plyler, 153 N. C. 630, 69 S. E.
269 (murder; prior attempt to assassinate the deceased, admitted).
1907, State d. Hazlet, 16 N. D. 426, 113 N. W. 374 (murder; sodomy by the defendant,
under circumstances not appearing, ejjcluded).
1907, State v. Dickerson, 77 Oh. 34, 82 N. E. 969 (murder of a woman ; arson of her house
two weeks before by defendant, not admitted to show intent, and on the facts held not
admissible to show motive).
1912, Clemmons v. State, 8 Okl. Cr. 159, 126 Pac. 704 (assault with intent to kill; the
shooting of the same person by the defendant, two years before, excluded).
1911, Williams v. State, 4 Okl. Cr. 523, 114 Pac. 1114 (murder; a former assault ad-
mitted).
1909, State v. La Rose, 54 Or. 556, 104 Pac. i299 (murder ; two similar assaults on other
persons within the next two days, admitted on the facts).
1906, State v. Smalls, 73 S. C. 516, 53 S. E. 976 (murder; defendant's violent conduct to
third persons just before, admitted).
1904, State v. Coleman, 17 S. D. 594, 98 N. W. 175 (murder ; certain forgeries admitted as
showing motive and plan).
1907, Holder v. State, 119 Tenn. 178, 104 S. W. 225 (murder of a father by shooting, at-
tempt to poison the whole family, admitted).
1912, Dietz v. State, 149 Wis. 462, 136 N. W. 166 (murder in resisting arrest; to negative
the defendant's assertion that he beheved the officers to be private marauderg, the defend-
ant's course of conduct in prior years in resisting arrest under similar circumstances was
admitted).
Compare the cases cited ante, § 106, post, § 396.
Murder by poisoning: 1904, Cawthon v. State, 119 Ga. 395, 46 S. E. 897 (poisoning of
T. ; after T.'s death, H. died, after drinking T.'s brandy ; obscure ruling).
1906, People v. CoUins, 144 Mich. 121, 107 N. W. 1114 (murder of L. by arsenic; death of
W. by arsenic, four months before, W. living in the defendant's family, not admitted;
no sufficient foundation being shown; Grant and Montgomery, J.J., diss., on the ground
that it was admissible to show defendant's possession of arsenic). 1914, People v. Mac-
gregor, — Mich. — , 144 N. W. 869 (murder by arsenic poisoning ; the defendant was a
physician, attending the S. family; the father John W. dieid in 1908, the sons Peter in July
1910, Albert in May, 1911, and Scyrel in August, 1911; the charge being the death of
Scyrel, the death of Albert by arsenic poisoning was admitted).
1911, State V. Hyde, 234 Mo. 200, 136 S. W. 316 (murder of the father-in-law of defendant,
a physician, by poisoning with strychnine and cyanide ; killing of other members of the
family, co-legatees with the defendant's wife of the deceased's fortune, by various poisons,
including disease germs, offered to evidence intent, excluded, on the absurd and unfounded
principle that the means of death used in the other instances must be "precisely similar" ;
the ruling is founded on the unsupported statement of a single treatise; Donellan's
Case, supra, § 303, sufficiently shows the novelty and impropriety of such a limitation ;
offered to show motive, the other killings were held to be admissible, but not sufficiently
evidenced).
1904, State v. Sargood, 77 Vt. 80, 58 Atl. 971 (poisoning of B.'s colts; H. having opposed
defendant's desires, the attempted poisoning of H. was admitted as part of a plan).
1913, State v. Hazzard, 75 Wash. 5, 134 Pac. 514 (murder by starvation ; the deceased
being one of two women who had jointly arranged to put themselves under the defendant's
care, the illness of the other woman under the defendant's treatment was admitted.
94
OTHER CRIMES, TO SHOW INTENT, ETC. §367
§ 364. Assault with Intent.
[Note 4; add:]
1909, Com. V. House, 223 Pa. 487, 72 Atl. 804 (assault on a woman; assault on another
woman about the same time, excluded).
1904, Livingston v. State, 47 Tex. Cr. 405, 83 S. W. 1111 (assault by a father on his daughter ;
repeated attempts of the father to have intercourse with her, explaining her refusal to go
with him, which led to the assault, excluded ; unless the Supreme Court knew of facts not
disclosed in the decision, it was a brutally unjust one).
§ 367. Miscellaneous Ofiences ; Gaming, etc.
[Note 3; add:]
1908, First Nat'l Bank v. Miller, 235 111. 135, 85 N. E. 312 (gambling in grain contracts
without intent to deliver, as a defence to a note ; the payee's similar transactions with other
persons, admitted, to show intent). 1912, People v. Viskniskki, 255 111. 384, 99 N. E. 621
(renting premises for gaming ; two former instances of renting to the same party and their
use for gaming, admitted).
1904, State v. Behan, 113 La. 754, 37 So. 714 (keeping a house for illegal faro-banking;
prior similar acts of gaming not more than two weeks before, admitted to show knowledge
and intent).
1913, Dupree v. State, — Okl. Cr. App. — , 134 Pac. 86 (gambling; former convictions
for gambling, excluded).
Compare the cases cited ante, § 203, n. 2 (proof of an habitual or continuing offence,
e.g., keeping a gaming house).
For repuiaiion to evidence knowledge, see ante, § 254.
[Note 4; add:]
1909, Jaynes v. People, 44 Colo. 535, 99 Pac. 325 (poisoning a horse ; rule stated).
1909, People v. Minney, 155 Mich. 534, 119 N. W. 918 (mutilating a horse by cutting off
its tongue ; other similar offences, excluded).
[Note 5 ; add :]
1907, Price v. Clapp, 199 Term. 425, 105 S. W. 864 (libel in an anonymous letter written
to the plaintiff's employer and calling the plaintiff a thief ; the defendant and his wife were
alleged as the writers, but denied it ; admissions of the defendant's wife that she had
written other anonymous letters, excluded; clearly unsound; the peculiar custom of
writing anonymous letters served to identify the defendant on the issu^ before the court ;
post-office inspectors could have enlightened the court on this subject).
[Note 9; add:]
1910, Lee v. State, 8 Ga. App. 413, 69 S. E. 310 (prescription of cocaine not in good faith as
medicine ; defendant's frequent issuance of such prescriptions without inquiry, admitted ;
enlightened opinion by Powell, J.).
1911, Stanley v. State, 9. Ga. App. 141, 70 S. E. 894 (unlawful prescription of cocaine;
frequent prescription of cocaine to others, without inquiry, admitted).
1906, Joseph Taylor Coal Co. v. Dawes, 220 111. 145, 77 N. E. 131 (injury to a mine-workman
by an unlawful lowering of the cage at a speed forbidden by statute ; the engineer's repeated
lowering of the cage at such speed, admitted to show knowledge and wilfulness).
:[Nofe 10; add:]
1912, State v. Oden, 130 La. 598, 58 So. 351 (illegal liquor selling; later sale in another
parish, excluded).
• 95
§367 CIRCUMSTANTIAL EVIDENCE
[Note 10 — continued]
1909, Lockard v. Van Alstyne, 155 Mich. 507, 120 N. W. 1 (damage by sale of liquor ; on the
issue whether the intent was to sell for medicine or to sell for beverage, the practice of the
defendant to sell for beverage was admitted). 1910, People v. Giddings, 159 Mich. 523, 124
N. W. 546 (il|egal sale ; sales to others, admitted).
[Note 12; add:]
1912, Curry v. State, 117 Md. 687, 83 Atl. 1030 (illegal sale; prior sales admitted to show
intent and to evidence the "place of business" mentioned in the statute).
1903, State v. Wenzel, 72 N. H. 396, 56 Atl. 918 (keeping in December, not admitted to
prove intent in April, on peculiar facts and theory).
1914, TaUaferro v. U. S., 5th C. C. A., 213 Fed. 25 (illegal sale of liquor; keeping also a
bawdy-house held inadmissible ; unsound on the facts).
1905, State v. Costa, 78 Vt. 198, 62 Atl. 38.
§ 371. Copyright Infringement.
[Note 1; add:]
1904, Encyclopsedia Brit. Co. v. American N. Ass'n, 130 Fed. 460, 464, C. C. A.
§ 376. Habit; Miscellaneous Examples.
[Note 2; add:]
1906, Parrott v. Atlantic & N. C. R. Co., 140 N. C. 546, 53 S. E. 432 (to disprove an alleged
custom of a conductor in taking tickets, instances of his not doing so were received).
[Note 3; add:]
1909, Gray v. Chicago. R. I. & P. R. Co., 143 la. 268, 121 N. W. 1097 (deceased's practice
of care at a crossing, admitted, but not particular instances).
1903, Reagan v. Manchester St. R., 72 N. H. 298, 66 Atl. 314 (colUsion; by a motorman,
that he had often run at a speed of twenty miles, admitted).
§ 377. Habit in Contracts.
[Note 1; add:]
Contra : 1905, Patterson v. First N. Bank, 73 Nebr. 384, 102 N. W. 765 (certificate of deposit
signed by the president of a bank ; prior instance of the bank's honoring such a document,
excluded, partly because too remote, but partly on the erroneous theory that such evidence
must involve an issue of fraud).
Accord: 1908, Hawkins v. Windhorst, 77 Kan. 674, 96 Pac. 48 (wife's authority to hus-
band to sign checks ; former instances admitted).
1910, Valiquette v. Clark B. C. M. Co., 83 Vt. 538, 77 Atl. 869 (authority to draw a draft;
the acceptance of three prior drafts, admitted).
[Note 2; add:]
Accord : 1909, People v. Zito, 237 111. 434, 86 N. E. 1041 (sales of cocaine ; the clerk's author-
ity being in issue, sales before and after the one charged were admitted).
[Note 4; add:]
1905, Galvin v. Beals, 187 Mass. 250, 72 N. E. 969 ("The fact that a landlord makes other
repairs is not evidence that he agreed to keep the premises in repair").
1909, Fitch V. Martin, 84 Nebr. 746, 122 N. W. 60 (services rendered as attorney ; "con-
96
CONDUCT, TO EVIDENCE HABIT, ETC. §382
[Note 4 — continued]
tinued professional services" admitted in discretion to evidence "an annual renewal of the
contract").
1905, Waldner v. Bowdoin S. Bank, 13 N. D. 604, 102 N. W. 169 (usury; habit of the
defendant to charge usurious interest ; not decided).
[Note 5; add:]
1906, Taylor v. Schofield, 191 Mass. 1, 77 N. E. 652 (commission on a patent-sale to C. ;
defendant's former agreement with P. for a sale, not admitted to show the terms of the
present one or the reason for breaking it).
1909, Provencher v. Moore, 105 Me. 87, 72 Atl. 880 (horse-boarding; terms of plaintiff's
offer to another person, excluded).
1912, Mance v. Hossington, 205 N. Y. 33, 98 N. E. 203 (action for services ; cross-examina^-
tion of the defendant about other suits brought against him by his employees for services,
ield improper).
1912, Chesterfield Mfg. Co. ». Leota Cotton Mills, C. C. A., 194 Fed. 358 (whether the
plaintiff's cotton had been properly dyed by the defendant ; to show that the trouble was
due to the poor quality of cotton and not to the defendant's process, the defendant's evidence
that three other mills' cotton had been properly dyed during the same period was excluded ;
erroneous).
1904, Coman «. Wunderlich, 122 Wis. 138, 99 N. W. 612 (goods not equal to sample ; similar
insufficiency of similar goods sold to another person on the same day, excluded).
1904, Sullivan v. Manston M. Co., 123 Wis. 360, 101 N. W. 679, semble (whether grain was
bailed or sold ; usage admitted).
§ 378. Prescriptive Possession ; Surveys, Boundaries.
{Note 2, 1. 4 from the end ; add :]
1907, Godfrey v. Dixon P. & L. Co., 228 111. 487, 81 N. E. 1089.
§ 382. Prior or Subsequent Status.
[Note 1; add:]
1912, Potlatch Lumber Co. d. Anderson, C. C. A., 199 Fed. 742 (lumber-camp injury; that
no rules for protection from falling trees were in force a year before and a year after, the
injury in question, held properly admitted in the trial Court's discretion).
[NoUZ; add:]
1909, Sullivan v. Girson, 39 Mont. 274, 102 Pac. 320 (possession of a ring pledged).
1910, Tonopah & G. R. Co. v. Fellanbaum, 32 Nev. 304, 107 Pac. 883 (land-patent; but
erroneously declining to presume earlier from later possession).
[Note 4: ; add:]
1913, Carey v. Hawaian Lumber Mills, 21 Haw. 506 (continuance of original corporators
and stockholders, presumed).
1909, Tate v. Rose, 35 Utah 229, 99 Pac. 1003 (ownership in 1875, to evidence ownership
at time of action begun).
[NoteS; add:]
1906, Winkleman v. White, 147 Ala. 481, 42 So. 411 (domicile of a non-resident mortgagor,
presumed to continue).
97
§389 CIRCUMSTANTIAL EVIDENCE
§ 389. Motive ; General Principle ; Knowledge of Circumstances.
[Note 2; add:]
1907, Sasser v. State, 129 Ga. 541, 59 S. E. 255.
1908, Bachinski v. Bachinski, 152 Mich. 693, 116 N. W. 556 (whether a daughter was in-
tentionally omitted from her father's will made when she was 11 years old ; her conduct as
a prostitute at 18, excluded). 1913, People v. Auerbach, — Mich. — , 141 N. W. 869 (mur-
der ; insurance on deceased's life for wife's beneiit, as a motive fbr defendant, who might
expect to marry her ; held inadmissible, for lack of evidence of defendant's prior knowl-
edge).
1912, MuUins V. Com., 113 Va. 787, 75 S. E. 193 (murder).
1909, Spick V. State, 140 Wis. 104, 121 N. W. 664 (the knowledge need not be directly evi-
denced; the trial Court's discretion controls; good opinion by Marshall, J.).
§ 390. Motives for Murder.
[Note 1; add:]
1909, Rollings v. State, 169 Ala. 82, 49 So. 329 (murder ; bad character of defendant's wife,
without; other evidence, excluded).
1909, Ware v. State, 91 Ark. 555, 121 S. W. 927 (murder ; defendant's seduction of de-
ceased's daughter, unknown to deceased, excluded).
1904, People v. Wright, 144 Cal. 161, 77 Pac. 877 (certain adulterous relations, excluded,
following People v. Gress). 1905, People v. Cook, 148 Cal. 334, 83 Pac. 43 (murder of K.
for indecent proposals to defendant's daughter ; incestuous relation of defendant and his
daughter, admitted ; People v. Gress, supra, discredited on this point).
1905, Gossett v. State, 123 Ga. 431, 51 S. E. 394 (murder ; the defence being that the killing
was done on sight of the deceased seducing the accused's daughter, the prosecution was
allowed to prove the daughter's lewd character and the accused's knowledge of it, but not
particular acts of her unchastity).
1904, State v. Levy, 9 Ida. 483, 75 Pac. 227 (relations with prostitutes).
1910, People v. McMahon, 244 111. 45, 91 N. E. 104 (murder of defendant's house-servant
by poison; the servant being pregnant, by the defendant as alleged, the prosecution's
offer to show the plaintiff to be on bad terms with his wife was rejected ; quite unsound ;
no authority whatever cited).
1908, Lawson v. State, 171 Ind. 431, 84 N. E. 974 (defendant woman's adultery, on a charge
of husband-murder, admitted). 1910, Porter v. State, 173 Ind. 694, 91 N. E. 340 (wife-
murder; defendant's illicit relations with other women, admitted).
1912, Meno v. State, 117 Md. 435, 83 Atl. 759 (abortion by the alleged seducer ; the woman's
intercourse with a third person as evidencing the latter's paternity, not admitted for de-
fendant).
1910, Com. V. Howard, 205 Mass. 128, 91 N. E. 397 (wife-murder; the defendant's recent
attempt to persuade his wife to an abortion, admitted with other circumstances to show a
desire to get rid of her as a burden ; also letters between the defendant and another woman
showing an intimacy).
1913, Miller ». State, — Okl. Cr. — , 131 Pac. 717 (iUicit relations as a motive for murder).
1906, State v. Martin, 47 Or. 282, 83 Pac. 849 (kiUing of the father of a girl M. ; that de-
fendant had seduced M., admitted as showing motive). 1909, State v. Hembree, 54 Or.
463, 103 Pac. 1008 (wife-murder ; incest with the daughter, and the- wife's discovery of it,
as a motive, allowed).
1906, State v. Legg, 59 W. Va. 315, 53 S. E. 545 (wife's murder of husband ; the wife's
adultery, admitted).
For the principle that the criminality of conduct showing motive is no objection, see ante,
§§ 216, 305, 363.
98
CONDUCT, TO EVIDENCE MOTIVE, ETC. §392
[Note 2; add:]
1905, Zipperian v. People, 33 Colo. 134, 79 Pac. 1018 (deceased's information against de^
fendant for burglary, admitted).
1910, State v. McKowen, 126 La. 1075, 53 So. 353.
1904, State v. Lewis, 181 Mo. 235, 79 S. W. 671 (that the deceased officer was kiUed while
searching defendant's house to discover money robbed from a bank a month before, ad-
mitted).
1906, State v. Spaugh, 200 Mo. 571, 98 S. W. 55 (prior assault, as a motive for murdering the
sheriff seeking to arrest, admitted).
1906, Thompson v. U. S., 144 Fed. 14, 18, C. C. A. (counterfeiting notes; defendant's
admission that he was Uable to arrest as an abortionist, admitted as showing a motive for,
the use of counterfeit money).
[Note 3; add:]
1906, Hayes ». State, 126 Ga. 95, 54 S. E. 809 (murder; indictment and judgment against
the accused for gaming, the deceased having testified thereon against him, admitted).
1909, State v. Finch, 54 Or. 482, 103 Pac. 505 (murder ; the deceased's preferment of various
charges against the defendant, admitted).
1909, Spick V. State, 140 Wis. 104, 121 N. W. 664 (deceased an informer upon a prior crime
of defendant).
[Note 5; add:]
1903, Bess v. Com., 116 Ky. 927, 77 S. W. 349 (insurance-money, personalty, and defendant's
arson, etc., admitted).
§ 391. Motive for Other Deeds.
[Note 1; add:]
1905, State v. KoUer, 129 la. Ill, 105 N. W. 391 (adultery; the defendant's wife's violence,
etc., to him, admitted in his favor).
For the principle that the criminality of conduct showing motive is no objection, see ante,
§§ 216, 305, 363.
§ 392. Pecuniary Circumstances as creating a Motive.
[Note 1 ; add :]
1905, Security Trust Co. «. Robb, 142 Fed. 78, 84, C. C. A.' (conversely, the defendant's
possession of ample means may evidence the plaintiff's lack of good faith in making a
demand for security).
[Note 2; add:]
The following seems to belong here : 1911, Dougherty v. White, 2 Boyce, 25 Del. 316, 80
Atl. 237 (action for work and labor, amounting to $900, against a deceased's estate ; that
the plaintiff, at the time of the supposed credit, borrowed money on notes from the testator,
admitted to disprove his claim).
[Note 5; add, under Accord :]
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (Com. v. Jeffries approved).
[Noted; add:]
1905, Dimmick ». U. S., 135 Fed. 257, 70 C. C. A. 141 (larceny by a clerk of the mint; that
he was in debt while there, admitted).
99
§392 CIRCUMSTANTIAL EVIDENCE
[Note 7 ; add, under Accord:]
1871, Chahoon's Case, 20 Gratt. 733, 738, 791 (forgery of the signature of H. on a bond;
H.'s good pecuniary condition, admitted to negative the probabiUty of his borrowing).
1871, Sands' Case; ib. 800, 803, 821 (similar).
1905, State v. Moyer, 58 W. Va. 146, 52 S. E. 30 (embezzlement).
[NoteQ; add:]
1906, Green v. Dodge, 79 Vt. 73, 64 Atl. 499 (market value of a lease, admitted to show the
terms agreed on).
1909, Landis & Schick v. Watts, 84 Nebr. 671, 121 N. W. 980 (value of services, here ex-
cluded, because of an account stated ; Root, J., diss.).
1913, FfoUiott V. Lord, 76 Wash. 309, 136 Pac. 126 (contract for car rentals; market costs,
etc., offered on the present principle, excluded ; foregoing cases ignored ; three judges diss.).
1907, Anderson v. Arpin H. L. Co., 131 Wis. 34, 110 N. W. 788 (services in piling lumber,
etc. ; good opinion by Marshall, J.).
§ 393. Legal Liability as creating a Motive.
[Note 1 ; add :] ■
1911, Bock V. Wall, 207 Mass. 506, 93 N. E. 821 (whether a dam had been maintained at a
height for 20 years ; a deed of C. covenanting so to maintain it, admitted).
1907, Virginia-Carolina C. Co. v. Knight, 106 Va. 674, 56 S. E. 725 (defendant's insur-
ance against accidents to employees, not admissible to show that he would be less careful).
Compare the cases cited post, §§ 949, 969.
§ 396. Hostility in General, at Other Times.
[Note 3; add:]
But the details of prior quarrels as showing the hostility of the deceased, on a charge of
homicide, are not open to the same objection, and may be received on the principle stated
in the opinion of Whitfield, C. J., in Brown v. State, Miss., cited infra, n. 5.
[Note 5; add:]
Canada : 1909, R. ». Law, 19 Man. 259 (anonymous libel ; various acts of malicious mis-
chief done by the accused to the libellee's family, not admitted to show ill-will as making
probable the defendant's authorship) .
1907, R. V. Sunfield, 15 Ont. L. R. 252 (murder).
[Note 5; add:]
Alabama : 1900, Longmire v. State, 130 Ala. 66, 30 So. 413 (after the State's improper ex-
amination into particulars of a prior difficulty, the defendant was allowed to show all the
particulars in rebuttal). 1905, Kjoell v. State, 139 Ala. 1, 36 So. 1025 (particulars of a
former difficulty allowed on re-direct examination for the State, the defendant having gone
into them on the cross-examination). 1904, Gordon v. State, 140 Ala. 29, 36 So. 1009
(murder ; previous difficulties, not admitted for the defendant). 1904, Plant v. State, 140
Ala. 52, 37 So. 159 (a difficulty with deceased before the killing, and the defendant's expres-
sions of animus immediately after, admitted). 1904, Pitts v. State, 140 Ala. 70, 37 So. 101
(deceased's curses, in a prior difficulty, excluded, under the rule forbidding details). 1905,
Dunn V. State, 143 Ala. 67, 39 So. 147 (particulars of a prior difficulty, excluded). 1905,
Sanford v. State, 143 Ala. 78, 39 So. 370 (prior difficulty of deceased with a third person ;
particulars admitted on the facts to show motive ; but the particulars of a prior difficulty
between deceased and defendant were excluded). 1906, Patterson v. State, — Ala. 41
So. 157 (particulars of a prior difficulty, excluded). 1906, Stallworth v. State, 146 Ala. S,
100
:^!^ /
j>
Ll
CONDUCT, TO EVIDENCE MOTIVE, ^CX '^' {^^ /397
'V
{Note 6 — continued]
41 So. 184 (similar). 1906, Morris v. State, ib. 66, 41 So. 274 (murder; expressions of
hostility, admitted). 1908, Robinson v. State, 155 Ala. 67, 45 So. 916 (after the State
shows prior difficulties, the defendant cannot show their details). 1913, Smith v. State, —
Ala. — , 62 So. 864 (details of prior threats sometimes admissible ; later expressions of
defendant's hostility, admitted).
California: 1905, Arnold's Estate, 147 Cal. 583, 82 Pac. 252 (hostility of a legatee charged
with undue influence).
Georgia: 1906, Graham v. State, 125 Ga. 48, 53 S. E. 816 (defendant's hostile language
before and after the homicide, admitted). 1906, Green v. State, 125 Ga. 742, 54 S. E. 724
(wife-murder; acts of ill treatment to the wife, not too remote, admissible).
Kansas : 1893, State v. Sortor, 52 Kan. 531, 34 Pac. 1036 (prior quarrels admitted, but not
the details).
Maine: 1906, Lenfest v. Bobbins, 101 Me. 176, 63 Atl. 729 (trespass for assault; the de-
fendant allowed to explain that the hostility "was not on his side").
Mississippi: 1904, Schrader v. State, 84 Miss. 593, 36 So. 385 (murder of C. ; a prior
quarrel between C. and A., a friend of the defendant, admitted). 1904, Thompson ji. State,
84 Miss. 758, 36 So. 389 (murder; prior difficulties, etc., excluded on the facts). 1905,
Brown (Tom) v. State, 85 Miss. 511, 37 So. 957 ("where the State itself introduces the
previous difficulty, the defendant should be permitted to show the details and character of
such difficulty," — in this case, "in order to show who was the aggressor in the difficulty
resulting in the killing"). 1906, Brown (Tom) v. State, 88 Miss. 166, 40 So. 737 (same case ;
held by the majority, per Calhoun, J., that "the nature and character of previous difficulties "
is admissible for the accused, even when the State does not first introduce the subject, on the
theory of uncommunicated threats, ante, § 111 ; the trial Com-t is rebuked for not following
"the plain statement" in the former opinion ; but the truth is that the trial Court did follow
it literally, and that the Supreme Court itself is in error in confusing the principle and prec-
edents for uncommunicated threats of the deceased, ante, § 111, with the present principle ;
the opinion of Whitfield, C. J., specially concurring, takes the correct ground, and admits
the details of the prior quarrel "so far as essential to show the common motive"). 1905,
Hughes V. State, — Miss. — , 38 So. 33 (details of a prior quarrel not connected with the
present aif ray, not admitted for the defendant ; preceding authorities not cited) . 1906, Brown
(Leora) v. State, 87 Miss. 800, 40 So. 1009 (homicide ; another difficulty between the families
of the parties thirty minutes before, admitted; following Brown (Tom) v. State, supra).
Oklahoma: 1904, Wells «. Terr., 14 Okl. 436, 78 Pac. 124 (former difficulty, admitted to
show malice of defendant). 1906, McHugh v. Terr., 17 Okl. 1, 86 Pac. 433 (assault with
intent to kill ; details of a prior difficulty, admitted for the defendant on the facts).
Oregon: 1906, State v. Martin, 47 Or. 282, 83 Pac. 849 (killing of the father of a girl M. ;
prior difficulty with the deceased, over the seduction of M. by defendant, admitted).
South Carolina : 1904, State v. Adams, 68 S. C. 421, 47 S. E. 676 (prior difficulty admitted,
but not the details). 1905, State v. Thrailkill, 71 S. C. 136, 50 S. E. 551 (details of a quarrel,
just preceding, with a third person, admitted for the State).
Washington: 1905, State v. Armstrong, 37 Wash. 51, 79 Pac. 490 (details of prior quarrels
admitted for the State in rebuttal of similar evidence for the accused).
[Text; at the end, odd ;]
(4) former assaults to show Intent {ante, § 363) ; (5) former hostility of a
witness to show Bias {'post, § 951).
§ 397. Hostility to Wife or Paramour.
[NoteS; add:]
1905, Roberts v. State, 123 Ga. 146, 51 S. E. 374 ("a long course of ill-treatment and cruelty,"
admitted).
101
§397 CIRCUMSTANTIAL EVIDENCE •
[Note 8 — continued]
1905, Campbell v. State, 123 Ga. 533, 51 S. E. 644 (husband-murder; the wife's prior
expressions of ill-feehng, held admissible).
1905, Parsons v. People, 218 111. 386, 75 N. E. 993 (wife-murder ; prior quarrels, disagree-
ments, and expressions of ill-feeling, admitted).
1908, State v. Moere, 77 Kan. 736, 95 Pac. 409 (wife-murder ; former cruelty and brutality,
extending over seven years, excluded, but too strictly).
1912, State v. Simon, 131 La. 520, 59 So. 975 (wife-murder, prior violent acts of defendant
admitted).
1908, State v. Page, 212 Mo. 224, 110 S. W. 1057 (murder; deceased's wife as paramour).
1908, State ». McNamara, 212 Mo. 150, 110 S. W. 1067 (wife-murder; lust for another
woman).
1911, State V. Whitsett, 232 Mo. 511, 134 S. W. 555 (threat two years before, admitted).
1913, State v. Overton, — N. J. L. — , 88 Atl. 689 (murder of paramour and child ; de-
fendant's expressions eight months before, admitted).
1905, Miera v. Terr., 13 N. M. 192, 81 Pac. 586 (paramour-miurder ; a threat of three years
before, admitted).
For the principle that the criminality of conduct showing motive is no objection, see
ante, §§ 216, 305, 363.
1913, People v. Harris, 209 N. Y. 70, 102 N. E. 546 (husband's intimacy with a prostitute,
during separation from his wife, not admitted on the facts, on his trial for the killing of the
wife).
1912, State v. Wilkins, 158 N. C. 603, 73 S. E. 992 (wife-murder; prior quarrels, admitted).
[Note 8, col. 2, 1. 9 ; change .•]
For "Kennedy v. Hensley," read "Bailey v. Bailey."
§ 398. Sexual Passion at Other Times.
[Note 1 ; add:]
Advltery, Bigamy, Crim. Con., Fornication, Sodomy, Incest :
England: 1910, Allen's Case, 4 Cr. App. 181 (incest in Nov. 1909 ; other incestuous acts
between March and November, admitted). , 1910, Ball's Case, 5 Cr. App. 238 (incest in
1910; incestuous acts in 1907, 1908, and 1909, excluded; "such evidence can only be re-
ceivable to show the mens rea in the doing of an act" : the opinion ignores the distinction
between moral character and specific incestuous passion) ; on appeal to the House of Lords,
[1911] 1 K. B. 461, 6 Cr. App. 31, [1911] A. C. 47 (appeal allowed; evidence admitted,
L. C. Lorebum pointing out the correct distinction). 1910, Ball's Case, 6 Cr. App. 89
(incest in December, 1909 ; incestuous acts some weeks later, admitted). 1913, Blood-
worth's Case, 9 Cr. App. 80 (incest in 1912; intercourse in July, 1910, admitted). 1913,
Barrow's case, 9 Cr. App. 236 (sodomy on July 18 ; sodomy on June 6 with the same boy,
not admitted, because of insuflScient evidence of the earlier act).
Arkansas: 1906, Adams v. State, 78 Ark. 16,92 S. W. 1123 (incest; prior intercourse, be-
yond the period of limitations, admitted).
California: 1904, People v. Stratton, 141 Cal. 604, 75 Pac. 166 (incest; like People v.
Patterson, supra, but the Court's opinion forgets to cite it). 1904, People «. KoUer, 142 Cal.
621, 76 Pac. 500 (incest; subsequent and prior acts of intercourse or improper familiarity,
admissible; "the only case in this State which has been called to our attention" is People
». Stratton, supra).
1906, People v. Morris, 3 Cal. App. 1, 84 Pac. 463 (preceding case followed). 1910,
People V. Harrison, 14 Cal. App. 545, 112 Pac. 733 (sodomy; a series of former acts
between the same parties, admitted).
Dist. Columbia: 1906, Dodge v. Rush, 28 D. C. App. 149, 156 (crim. con. ; prior conduct,
admitted).
102
CONDUCT, TO EVIDENCE MOTIVE, ETC. § 398
[Note 1 — contimted]
Georgia: 1906, Lipham v. State, 125 Ga. 52, 53 S. E. 817 (incest; prior intercourse in an-
other county and another State, admitted). 1906, Nobles v. State, 127 Ga. 212, 56 S. E. 125
(adultery ; improper conduct in another county, admitted).
Illinois: 1913, People v. Turner, 260 111. 84, 102 N. E. 1036 (incest; prior acts, covering a
period of 4J years, beyond the statute of limitations, admitted).
Iowa : 1906, State v. Judd, 132 la. 296, 109 N. W. 892 (incest ; prior acts admitted). 1909,
State V. Brown, — la. — , 121 N. W. 513 (adultery; adulterous relations up to the time of
the indictment, admitted). 1912, State v. Heft, 155 la. 21, 134 N. W. 950 (incest; prior
acts, admissible; subsequent acts, not decided).
Kentucky: 1908, Robards v. Robards, — Ky. — , 109 S. W. 422 (divorce for adultery ; other
acts prior and subsequent, admissible).
Michigan: 1911, Merrill v. Leisenring, 166 Mich. 219, 131 N. W. 538 (alienation of affec-
tions ; the parties' rektions after suit begun, admitted). 1913, People v. Davis, 175 Mich.
594, 141 N. W. 667 (adultery ; subsequent acts, excluded ; ignoring Matthews v. Detroit
Co.; see the comments below, for Rape under Age, on People v. Brown, Mich., and People
V. Palmberg, Mo.).
Missouri : 1907, State v. Pruitt, 202 Mo. 49, 100 S. W. 431 (incest ; prior acts of intercourse
and lascivious familiarity, admissible).
Nebraska: 1909, Peterson v. State, 84 Nebr. 76, 120 N. W. 1110 (incest; former acts here
excluded, being offered by hearsay only).
New Hampshire: 1909, Hoxie v. Walker, 75 N. H. 308, 74 Atl. 183 (alienation of affections
of plaintiff's husband ; defendant's hostile conduct to the husband two months after suit
brought, held not improperly admitted in discretion).
Ohio: 1914, State v. Reineke, Oh., 106 N. E. 52 (incest; subsequent incestuous acts,
admissible; distinguishing Rason v. State, unreported, which excluded such evidence in
rape).
Oregon: 1904, State v. Eggleston, 45 Or. 346, 77 Pac. 738 (adultery; intercourse between
the parties at other prior times, admitted).
Texas: 1904, Clifton v. State, 46 Tex. Cr. 18, 79 S. W. 824 (incest; a series of subsequent
acts, including some covered by other indictments, excluded; Burnett v. State, supra,
overruled, on the authority of Smith v. State, infra, Rape under Age, and no othei" of the
above cases cited ; this opinion merits the censure of the Texas bar ; it. not only overthrows
exact precedents, but in so doing it introduces, upon the scantiest consideration, a heretical
and inferior rule, and creates unnecessary difficulties in the proof of this crime). 1905,
Wiggins V. State, 47 Tex. Cr. 538, 84 S. W. 821 (rape and incest ; prior acts of intercourse,
excluded ; Clifton v. State not cited). 1905, French «. State, 47 Tex. Cr. 571, 85 S. W. 4
(adultery ; rule of Clifton v. State applied, but now held to admit acts of intimacy short of
criminal intercourse, if not too remote). 1906, Gillespie v. State, 49 Tex. Cr. 530, 93 S. W. .
556 (Clifton v. State followed ; here excluding prior acts more than ten years before).
1909, Barrett v. State, 55 Tex. Cr. 182, 115 S. W. 1187 (incest; prior and subsequent acts
admissible, following Bmnett v. State).
1909, Skidmore v. State, 57 Tex. Cr. 497, 123 S. W. 1129 (incest; prior intercourse excluded ;
Davidson. P. J., this time again obtaining the upper hand, and declaring that as "Barrett v.
State was decided upon the authority of Burnett v. State," which "had been overruled in
Clifton ». State and followed in subsequent cases," and that as Clifton®. State "is correct,"
"the Barrett case therefore is overruled"; Ramsey, J., diss. ; thus the seesaw goes on, and
it would be amusing to await the result, if the seesawing were not harassing to trial judges
and a detriment to justice ; certainly no such persistency of dissent has been recorded out-
side of the Federal Supreme Court).
Utah: 1912, State «. Hansen, — Utah — , 122 Pac. 375 (adultery; subsequent acts inad-
missible ; State v. Hilberg, infra, followed).
Washington: 1903, State v. Wood, 33 Wash. 290, 74 Pac. 380 (incest; other prior acts of
intercourse between them, admitted). 1905, State v. Nelson, 39 id. 221, 81 Pac. 72 (similar). ,
103
§398 CIRCUMSTANTIAL EVIDENCE
[Note 1 — continued]
Seduction, Bastardy, Breach of Marriage-Promise :
1905, Walker v. State, 165 Ind. 94, 74 N. E. 614 (bastardy; the defendant, alleging that B.
was the father, was allowed to introduce the relatrix' admissions that she and B. had had
intercourse on occasions prior to the time of conception).
1912, State v. Holter, 30 S. D. 353, 138 N. W. 963 (seduction; subsequent acts, ad-
mitted).
1914, State v. Tilden, — Wash. — , 140 Pac. 680 (seduction; prior intercourse admitted).
Rape (see the cases collected ante, § 357).
Rape under Statutory Age :
England: 1913, Shellaker's Case, 9 Cr. App. 240 (carnal knowledge of a girl under 16, prior
to the six months hmited by statute, admitted as evidence of an "amatory passion").
1913, The King v. Shellaker, [1914] 1 K. B. 414 (carnal knowledge under 16 ; previous acts
of intercourse, admitted ; St. 1885, 48-9 Vict., c. 69, § 5, limiting time of prosecution,
held not to exclude conduct more than six months earlier).
California: 1909, People v. Soto, 11 Cal. App. 431, 105 Pac. 420 (other acts before and after,
admissible).
Connecticut: 1907, State v. Sebastian, 81 Conn. 1, 69 Atl. 1054 (rape under age; inter-
course three months later, admitted).
Idaho: 1904, State v. Lancaster, 10 Ida. 410, 78 Pac. 1081 (rape under age; prior acts of
intercourse between the parties, admitted). 1911, State v. Henderson, 19 Ida. 524, 114
Pac. 30 (statutory rape; other intercourse before and after, admitted).
Illinois: 1910, People v. Everham, — 111. — , 93 N. E. 373 (rape of a daughter under age;
other acts with the same daughter, semble, admissible). 1911, People ». Gray, 251 III. 431,
96 N. E. 268 (rape under age ; other intercourse with prosecutrix, admitted ; also postal
cards sent by defendant to her). 1912, People v. Gibson, 255 111. 302, 99 N. E. 599 (rape
under age on C. ; testimony of other young gu-ls to the defendant's similar acts to them
ranging over six months, excluded ; also testimony of P. that at the same place and occa-
sion and in the presence of C. defendant did the same act to P. ; the latter ruling is absurd ;
such offences might almost as well be given immunity).
Iowa: 1905, State v. Sheets, 127 la. 73, 102 N. W. 415 (rape under age; assault on other
girls in the same place and the same day, admitted). 1910, State v. Neubauer, 145 la. 337,
124 N. W. 312 (lascivious conduct with a male minor ; former similar acts with the same
minor, admitted).
Kansas: 1904, State v. Borchert, 68 Kan. 360, 74. Pac. 1108 (other acts of intercourse
between the parties, admitted). 1905, State v. Oswalt, 72 Kan. 84, 82 Pac. 513 (subsequent
intercourse inadmissible). 1906, State ». Stone, 74 Kan. 189, 85 Pac. 808 (carnal knowledge
under age ; subsequent as well as prior acts of intercourse, etc., admitted ; State v. Borchert
approved). 1911, State v. Brown, 85 Kan. 418, 116 Pac. 508 (rape under age; subsequent
intercourse, admitted).
Michigan: 1906, People v. Brown, 142 Mich. 622, 106 N. W. 149 (subsequent acts of inter-
course, after the statutory age, excluded, approving People v. Etter, 81 id. 570, 45 N. W.
1109, and apparently disapproving People v. Jamieson, supra; no principle is stated, and
the opinion entirely ignores the reasoning appUcable to the question, and tends to confuse
the precedents in this State).
Minnesota: 1912, State v. Schneller, 120 Minn. 26, 138 N. W. 937 (rape under age; prior
acts, admitted; subsequent acts, not decided).
Mississippi: 1914, Collier v. State, — Miss. — , 64 So. 373 (rape on his own daughter aged
13 ; subsequent acts of rape during nearly a year, excluded ; unsound, being misled by the
Texas decisions).
Missouri: 1906, State v. Palmberg, 199 Mo. 233, 97 S. W. 566 (rape under age ; subsequent
acts are inadmissible, but prior acts are admissible ; it is unfortunate that this Court, upon
a careful consideration of the subject, should adopt this illogical and unpractical view, which
makes the rule of evidence run counter to human nature; in selecting People v. Clark,
104
CONDUCT, TO EVIDENCE MOTIVE, ETC. §398
[Note 1 — continued]
Mich., supra, as its guide, it took a Court which has been the most inconsistent on this
subject and one whose precedents are therefore of small value).
Nebraska: 1904, Blair v. State, 72 Nebr. 501, 101 N. W. 17 (rape under age; improper
familiarities between the two, admitted). 1904, Woodruff v. State, 72 Nebr. 815, 101 N. W.
1114 (subsequent intercourse with the prosecutrix, admitted). 1908, Leedom v. State,
81 Nebr. 585, 116 N. W. 496 (rape under age; subsequent acts of intercourse, admitted).
New York: 1914, People v. Thompson, — N. Y. — , 106 N. E. 78 (rape under age; sub-
sequent acts of intercourse, held admissible).
Ohio: 1906, State v. Lawrence, 74 Oh. 38, 77 N. E. 266 (rape under age; the defendant's
confessions of other acts of intercourse with the child more than two years later, excluded).
1910, Boyd V. State, 81 Ohio 239, 90 N. E. 355 (rape under age ; intercourses between
defendant and prosecutrix within two months before, admitted).
Oklahoma: 1905, Cecil v. Terr., 16 Okl. 197, 82 Pac. 654 (rape under age; prior acts of
intercourse, admitted, but not subsequent ones ; the Court's assertion that "it is just as well
settled that such subsequent acts" are inadmissible is wholly unjustifiable; only Michigan
decisions are cited for this, and in that jurisdiction the precedents are confused and incon-
sistent). 1913, Morris v. State, — Okl. Cr. — , 131 Pac. 731 (rape under age; subsequent
acts, admitted ; overruling Cecil v. Terr., supra). 1913, Allen v. State, — Okl. Cr. App. — ,
134 Pac. 91 (rape on the defendant's daughter aged 15 ; the prosecution's evidence that the
girl had had a child by a negro was held improperly admitted ; apparently this evidence was
calculated to heighten the prejudice against the accused ; moreover, the girl was apparently
a degenerate and a maker of false charges). 1914, Flowers v. State, — Okl. Cr. — , 138 Pac.
1041 (rape under age; other intercourse during the next three years, admitted).
So. Carolina: 1911, State v. Richey, 88 S. C. 239, 70 S. E. 729 (rape under age, prior and
subsequent acts, admissible).
So. Dakota: 1910, State v. Sysinger, 25 S. D. 110, 125 N. W. 879 (rape under age; former
acts of intercourse, admitted). 1911, State v. Rash, 27 S. D. 185, 130 N. W. 91 (other
intercourse with the prosecutrix, admitted).
Tennessee: 1904, Sykes v. State, 112 Tenn. 572, 82 S. W. 185 (rape under age; prlbr and
subsequent intercourse, admitted).
Texas: 1904, Henard v. State, 46 Tex. Cr. 90, 79 S. W. 810 (rape under age; subsequent
intercourse, excluded, following the foregoing cases; but the ruling is unsound on the
facts, for- the evidence tended to explain away a circumstance discrediting the pros-
ecutrix). 1904, Henard v. State, 47 Tex. Cr. 168, 82 S. W. 665 (intmiacy short of criminal
intercourse is admissible). 1905, French ». State, 47 id. 571, 85 S. W. 4 (foregoing rule
approved). 1911, Battles v. State, 53 Tex. Cr. 202, 109 S. W. 195, 63 Tex. Cr. 147, 140
S. W. 783 (rape under age ; prior and subsequent intimacy, admissible ; "it should be gov-
erned by the facts of each case " whether other acts of intercourse are admissible ; prior
cases examined, and a number declared to be overruled ; Davidson, P. J., diss.).
Utah: 1911, State v. Mattivi, 39 Utah 334, 117 Pac. 31 (rape under age; subsequent acts
of intercourse, inadmissible ; McCarty, J., diss, on this point ; this would have been a good
opportunity to repudiate the unsound precedent of State v. Hilberg) .
Vermont: 1905, State v. Willett, 78 Vt. 157, 62 Atl. 48 (rape under age; other acts of inter-
course before and since, admitted).
Washington: 1903, State v. Fetterly, 33 Wash. 599, 74 Pac. 810 (other acts of intercourse
between the parties, admitted). 1906, State v. Marselle, 43 Wash. 273, 86 Pac. 586 (rape
under age ; defendant's attempt to seduce another girl, excluded). 1906, State v. Mobley,
44 Wash. 549, 87 Pac. 815 (rape under age; other acts of intercourse, admitted).
Wisconsin: 1905, Grabowski v. State, 126 Wis. 447, 105 N. W. 805 (indecent liberties;
prior liberties, admitted). 1910, Robinson v. State, 143 Wis. 205, 126 N. W. 750 (rape
under age ; lascivious approaches to other minor females, admitted, on the facts, to rebut a
defence).
For pregnancy, as evidence, see ante, § 168, n. 3.
105
§401 CIRCUMSTANTIAL EVIDENCE
§ 401. Discriminations as to Seduction, etc.
[Note 1; add:]
1908, Lauer v. Banning, 140 la. 319, 118 N. W. 446 (seduction is admissible to corroborate
the woman's assertion of promise of marriage).
§ 406. Malice in Defamation; Law in the Various Jurisdictions.
[Note 1; add:]
1904, Grant v. State, 141 Ala. 96, 37 So. 420 (prior utterances of a similar tenor, admitted).
1909, Cox V. State, 162 Ala. 66, 50 So. 398 (separate libelous letters, not admitted ; foregoing
cases not cited ; a majority dissenting on this point).
1909, Butler v. State, 162 Ala. 71, 60 So. 400 (oral defamation ; repetition since the date of
indictment, admitted, solely to evidence malice, and not to evidence the uttering of the words
charged ; foregoing case not considered). 1913, Webb v. Gray, — Ala. — , 67 So. 194 (im-
proved plea of truth, admissible, if not made in good faith, etc.).
1909, Smith v. Singles, 6 Pen. Del. 544, 72 Atl. 977 (subsequent utterance admitted, even
when plea of truth accompanies plea of not guilty).
1909, Ball V. Evening American Pub. Co., 237 111. 592, 86 N. E. 1097 (subsequent publica-
tion of similar "connected" libels, held admissible; whether admissible if unconnected,
not decided, the opinion does not notice the numerous distinctions involved in the prec-
edents of other Courts). 1910, People v. Strauch, 247 111. 220, 93 N. E. 126 (criminal Ubel ;
other Ubels by defendant; point not decided).
1906, Smith v. Hubbell, 142 Mich. 637, 106 N. W. 547 (stibsequent'similar utterance.'admitted).
1906, Yager v. Bruce, 116 Mo. iipp. 473, 93 S. W. 307 (unproved plea of justification may be
considered, but only if filed in bad faith).
1912, Thomas v. Shea, 90 Nebr. 823, 134 N. W. 933 (prior actionable utterances ; not decided).
1911, Ruskin v. Armn, 82 N. J. L. 72, 81 Atl. 342 (withdrawn plea of truth may be considered).
1913, Massee v. Williams, 6th C. C. A., 207 Fed. 222 (another utterance on the same day,
admitted).
1905, Ott V. Press P. Co., 40 Wash. 308, 82 Pae. 403, semble (subsequent similar utterances
about other persons in the same business, excluded).
1906, Earley v. Winn, 129 Wis. 291, 109 N. W. 633 (repetitions admissible). 1909, Pfister
». Milwaukee F. P. Co., 139 Wis. 627, 121 N. W. 938 (an unsuccessful attempt to prove a
justification is some evidence of malice, even under Wis. St. 1898, § 4201, siiuilar to Mass.
Rev. St. 1836 ; two judges diss.).
§ 411. General Principle of Identity- Evidence.
[Text, last line ; add a new note 1 :]
> 1906, Webb v. Ritter, 60 W. Va. 193, 54 S. E. 484 (the above principle cited, in identify-
ing land by the payment of taxes, etc.).
§ 413. Circiunstances Identifying a Person.
[Nate 1; add:]
1908, Wyatt v. State, 55 Tex. Cr. 73, 114 S. W. 812 (robbery ; another robbery on the same
night, admitted).
[Note 3; add:]
Finger-prints :
1909, Castleton's Case, 3 Cr. App. 74.
1911, People V. Jennings, 252 111. 534, 96 N. E. 1077 (finger-imprints, as interpreted by the
scientific system of dactyloscopy, admitted).
106
IDENTITY; EXTERNAL EXISTENCE, ETC. §437
[Note 3 — continued]
The use of finger-prints is discussed in C. A. Mitchell's "Science and the Criminal"
(1911), p. 51.
[Note&; add:]
and ante, § 270, n. 4.
[iVofe9; add:]
1905, Smith v. State, 165 Ind. 180, 74 N. E. 983 (the same witness need not testify to all the
identifying circumstances ; here the witness testified merely that she sold a revolver to a
colored man, the defendant being colored).
§ 414. Identity ; Criminality of Act Immaterial.
{Note I; add:]
1907, State ». Toohey, 203 Mo. 674, 102 S. W. 530 (burglary). 1910, State ». Dunwoody,
231 Mo. 48, 132 S. W. 227 (fraudulent registration; registration elsewhere, admitted to
identify).
1908, Vickers ». U. S., 1 Okl. Cr. 452, 98 Pac. 467 (rape; a burglary about the same time,
admitted to identify accused).
§ 416. Utterances used to Identify Time or Place.
[Note 1; add:]
1850, Com. V. Webster, Mass., Bemis' Rep. 269, 295 (fixing the time of seeing a person, by
notes written and received on that day, allowed).
§ 436. Occurrence of an Event.
[Text, p. 512 ; 1. 1 from below ; add a new note lo :]
'» An example of the simple use of such evidence, offered in the form of an expert's asser-
tion of a physical law, is this :
1909, Cutts V. Boston Elev. R. Co., 202 Mass. 450, 89 N. E. 21 (whether a passenger's fall
from a car-platform was caused by the motorman's sudden turning on of the power ; the
defendant contended that such a jerk would have tended to throw the plaintiff inwards,
the plaintiff contended that it might equally throw him outwards).
§ 437. Existence, from Prior or Subsequent Existence.
[Text, p. 514, 1. 5 from below; add a new note la, after "origin" :]
'" Quoted with approval in Potlatch Lumber Co. v. Anderson, C. C. A., 199 Fed. 742
(1912).
[Note 2; add:]
1908, WiUiams v. Lansing, 152 Mich. 169, 115 N. W. 961 (sidewalk a week or two afterward,
admitted).
1904, Norton «. Kramer, 180 Mo. 536, 79 S. W. 699 (sidewalk).
1910, Herrick v. Holland, 83 Vt. 502, 77 Atl. 6 (condition of highway holes four days later,
when substantially unchanged, admitted).
[Note 4 ; add :]
1906, Redus v. Milner C. & R. Co., 148 Ala. 666, 41 So. 634 (condition of a railway track
eighteen months later, excluded).
107
§437 CIRCUMSTANTIAL EVIDENCE
[Note 4 — continued]
1906, Dean v. Kansas C. St. L. & C. R. Co., 199 Mo. 386, 97 S. W. 910 (condition of rails six
months admitted; "we may be presumed to know that bad steel rails do not get any-
better by further use for six months or improve like wine with age").
[NoteQ; add:]
1913, Whiting-Middleton C. Co. «. Preston, 121 Md. 210, 88 Atl. 110 (nature of excavation
nineteen months later, admitted, no substantial change of conditions appearing).
[Note 7; add:]
1906, Foley v. Pioneer M. &. M. Co., 144 Ala. 178, 40 So. 273 (condition of mine ventilation,
thirteen hours after an accident, admitted).
1904, Droney v. Doherty, 186 Mass. 205, 71 N. E. 547 (condition of an elevator the next day,
admitted, no change having been suggested).
1904, Meyers v. Highland B. G. M. Co., 28 Utah 96, 77 Pac. 347 (position of a plank in a
mine, several hours later, allowed).
[Note 8; add:]
1909, Corcoran v. Albuquerque Traction Co., 15 N. M. 9, 103 Pac. 645 (car-step's condition
seven months before, admitted).
[Noted; add:]
1904, Griffin v. Martel, — Conn. — , 58 Atl. 788 (value of a stock of goods sixteen months
before, admitted).
1904, Union Hosiery Co. ■». Hodgson, 72 N. H. 427, 57 Atl. 384 (joint use of steam ; to show
the amount of coal used, the consumption in the two or three years preceding and the year
following, was held not improperly excluded in the trial Court's discretion, for dissimilarity
of conditions, etc.).
[fea^, p. 517,1.4; insert:]
The presumption of continuity (post, § 2530) is founded on this inference.
§ 438. Existence, from Concurrent Existence.
[Text, p. 518 ; add a new note la, at the end of par. (6) of the text :]
•« 1904, Chicago & A. R. Co. v. Howell, 208 111. 155, 70 N. E. 15 (size of a freight-car,
evidenced by the size of the series to which it belonged).
[Note 2; add:]
1909, Miller v. MuUan, 17 Ida. 28, 104 Pac. 660 (street-crossing; opinion not clear).
1908, Williams v. Lansing, 152 Mich. 169, 115 N. W. 961 (other defects in vicinity of a side-
walk, admitted).
1903, Kingfisher v. Altizer, 13 Okl. 121, 74 Pac. 107 (defective bridge ; "other defects in the
bridge," admitted).
[Note 4 ; add :]
1907, Lamb v. Philadelphia & R. R. Co., 217 Pa. 564, 66 Atl. 762 (condition of other parts
of a roof, admitted).
§ 439. Samples as evidence of a Lot.
[Note 2; add:]
N. Y. St. 1913, c. 223, p. 392 (amending Consol. L. c. 45, St. 1909, c. 49, by inserting a new
§ 240a, as to the mode of taking samples for evidence in trials under the public health law).
108
CAUSE, CONDITION, ETC., OF EVENT OR THING §451
§451. Material Efiects; Miscellaneous Instances.
[Note 1; add:]
1904, Attorney-General v. Nottingham, 1 Ch. 673 (smallpox hospital as a nuisance ; experi-
ence of other similar hospitals as to the risk of infection, admitted by consent, following
Hill V. Metrop. Asylum District, supra, but Farwell, J., writing the opinion, suggesting that
"the admission of such evidence in chief is wrong in principle," on the ground of surprise
and confusion of issues).
[Note 2; add:]
1905, Baltimore B. R. Co. v. Sattler, 100 Md. 306, 59 Atl. 654 (smoke nuisance; the effects
produced on other property in the immediate neighborhood, admitted).
[Note 3; add:]
1906, Central of Ga. R. Co. v. Keyton, 148 Ala. 675, 41 So. 918 (effect of prior overflows of
a sewer admissible to show "the consequences of the overflow under similar circumstances").
1914, Hardin v. Cook, — Ind. — , 105 N. E. 231 (whether a tile-ditch could drain a certain
tract; the successful drainage of a similar tract by such a ditch admitted).
1904, Burnside v. Everett, 186 Mass. 4, 71 N. E. 82 (overflow of a sewer ; an instance of
overflow two years before, held not improperly excluded on cross-examination; but the
Court cites Collins v. Dorchester, post, § 458, n. 2, which ought rather to be treated as
discredited by later rulings).
[Note 4 ; add :]
1908, Black Diamond C. & M. Co. v. Price, — Ky. — , 108 S. W. 345 (subsequent mine
explosions, not admitted; unsound; no authority cited).
1904, Rowe v. Northport S. & R. Co., 35 Wash. 101, 76 Pac. 529 (injury to orchards, etc.,
by smelting furnaces ; effect of the gases on vegetation in the vicinity, under similar condi-
tions, admissible ; but experiments before the jury as to the effect of sulphuric acid on dif-
ferent substances were excluded as not involving similar conditions ; the partly dissenting
opinion of Dunbar, J., is the preferable one).
[Note 5; add:]
1911, Fountain v. Connecticut F. Ins. Co., — Cal. App. — , 117 Pad 630 (whether a building
wall fell before fire began ; an earthquake being the alleged cause of the fall, the fall of other
buildings in the same block was excluded, the conditions being not shown to be substantially
similar). 1911, Loomis v. Connecticut F. Ins. Co., 16 Cal. App. 532, 117 Pac. 642 (similar).
1905, Castner v. Chicago B. & O. R. Co., 126 la. 581, 102 N. W. 499 (effect of fire upon land
similarly situated, admitted). 1906, Huggard v. Glucose S. R. Co., 132 la. 724, 109 N. W.
475 (former effects of wind in blowing objects similarly situated, held properly admitted,
but experiments as to vibrations, etc., held properly excluded, in the trial Court's discretion).
1909, Fishman v. Consumers' Brewing Co., 78 N. J. L. 300, 73 Atl. 231 (fire said to have been
set by hot ashes in an adjacent stable ; the occurrence of a fire at the same place from that
cause in 1901, excluded).
[Note 6; add:]
1908, Johnson v. State, 55 Fla. 46, 46 So. 155 (experiments before the jury as to mark made
by a spur, held not improperly rejected in discretion).
1913, People v. Auerbach, — Mich. — , 141 N. W. 869 (experiments as to a gun's discharge,
held not improperly excluded in discretion).
1904, State v. Ronk, 91 Minn. 419, 98 N. W. 334 (experiments with a gun-target, excluded).
1913, State v. Bass, 251 Mo. 107, 157 S. W. 782 (results of observation and experiment as
to conditions of powder-shells exploding, excluded, because not made under "similar con-
ditions and circumstances"; the opinion's strict insistence on similarity is too nearly like
109
§ 451 CIRCUMSTANTIAL EVIDENCE
[Note 6 — continued]
the literal imitativeness of the simple-minded Chinese who — in Charles Lamb's essay at
least — learned how to make roast pig ; in the case in hand, indeed, the defendant's house
had been burned down and his wife's body found in the ruins, but with gunshot wounds ;
two judges diss.).
1911, Gibbons v. Terr.,' 5 Okl. Cr. 212, 115 Pac. 129 (experiments as to bullet-marks on
a door, held improperly admitted on the facts).
1904, Cheetham v. Union R. Co., 26 R. I. 279, 58 Atl. 881 (derailment; experiments under
similar conditions, admitted). '
1912, Hughes v. State, 126 Tenn. 40, 148 S. W. 543 (experiments with pistols to show effects
of powder-burn on cloth, allowed).
1913, Otis Elevator Co. v. Luck, 9th C. C. A., 202 Fed. 452 (defective hook ; another accident
with the same hook fifteen months before, admitted).
1908, Richards v. Com., 107 Va. 881, 59 S. E. 1104 (shoe-tracks; substantially similar con-
ditions required).
[Note 7; add:]
1904, Birmingham R. L. & P. Co. v. Bynum, 139 Ala. 389, 36 So. 736 (defective coupling;
a witness allowed to state how often he had known cars with that coupling to break loose).
1904, Watson v. Bigelow Co., 77 Conn. 124, 58 Atl. 741 (defective boiler ; lack of complaint
by other purchasers of plaintiff's boilers, excluded, for confusion of issues, absence of similar
conditions, etc.).
1905, Gregory v. American Thread Co., 187 Mass. 239, 72 N. E. 962 (former defective
operation of a machine, excluded in the trial Court's discretion as too remote).
1903, Saucier v. N. H. Spinning Mills, 72 N. H. 292, 56 Atl. 545 (experiments withacarding-
machine to test its operation, made under similar circumstances, admitted in the trial
Court's discretion).
1913, Curtis & G. Co. v. Pribyl, — Okl. — , 134 Pac. 71 (injury from the belt of a rip-saw ;
experiments not admitted on the facts).
1908, Chicago Gt. Western R. Co. v. McDonough, 8th C. C. A., 161 Fed. 657, 667 (boiler
explosion ; four similar explosions of the same boiler within four years before, the conditions
being substantially the same, admitted).
[Note 8; add:]
1906, Standard C. Mills ». Cheatham, 125 Ga. 649, 54 S. E. 650 (condition of other machines
on the same floor, with reference to a pulley slipping, admitted).
1911, Lehmann v. Minneapolis & St. L. R. Co., 153 la. 118, 133 N. W. 327 (other in-
stances of the operation of handcars, admitted). i
1905, Fountaine v. Wampanoag Mills, 189 Mass. 498, 75 N. E. 738 (injury by frame-gears ;
the defective operation of another frame, not shown to be similar, excluded). 1909,
DuUigan v. Barber Asphalt P. Co., 201 Mass. 227, 87 N. E. 567 (prior explosion in a tank,
admitted).
1905, Lander v. Sheehan, 32 Mont. 25, 79 Pac. 406 (action for the price of a stove; plea that
it was defective and worthless ; worthlessness of a similar stove sold to a third person by
plaintiff, excluded ; following Stockton C. H. & A. W. v. Ins. Co., Cal., supra).
1912, Guse i>. Power & M. M. Co., 151 Wis. 400,' 138 N. W. 195 (that similar hooks fre-
quently broke or bent, admitted).
§ 454. Sparks as Cause of Fire ; Same Locomotive.
[Note 1; add:]
1904, Cheek v. Oak G. L. Co., 134 N. C. 225, 46 S. E. 488 (setting of fire by the same engine
one year later, excluded, on the ground of confusion of issues).
110
CAUSE, CONDITION, ETC., OF EVENT OR THING §456
[Note 1 — continued]
1906, Johnson v. Atlantic C. L. R. Co., 140 N. C. 574, 53 S. E. 362 (emissions of fire by the
same engine shortly before or after, admissible ; but here not the mere fact of a freight car
being on fire without any other evidence of the engine causing it).
1907, Sherrill v. Louisville & N. R. Co., 148 Ala. 1, 44 So. 153 Qike Alabama G. S. R. Co. v.
Clark).
§ 455. Sparks as Cause of Fire ; Other Locomotives.
[Note 8; add:]
1906, Birmingham R. L. & P. Co. v. Martin, 148 Ala. 8, 42 So. 618 (prior emissions by the
defendant's engines, admitted).
1908, Osburn v. Oregon R. & N. Co., 15 Ida. 478, 98 Pac. 627 (other fires admitted ; whether
Pennsylvania rule applies, 'not decided ; Koontz v. O. R. & N. Co. not cited). 1912, Fodey v.
Northern Pacific R. Co., 21 Ida. 713, 123 Pac. 835 (Osburn v. R. Co., followed ; admissible
for other engines, even where the particular engine is identified).
1904, Sprague v. Atchison, T. & S. F. R. Co., 70 Kan. 359, 78 Pac. 828 (to show the origin
of the fire, where it is disputed, emissions by other engines of the defendant are receivable,
whether the engine is identified or not).
1909, lUmois Central R. Co. v. Hicklin, 131 Ky. 624, 115 S. W. 752 ("The admissibility of
such evidence is no longer an open question"). 1910, Cincinnati N. O. & T. P. R. Co. v.
Sadieville M. Co., 137 Ky. 568, 126 S. W. 118 (Barrow Case approved and followed). 1912,
Louisville & N. R. Co. v. Guttman, 148 Ky. 235, 146 S. W. 731 (like 111. C. R. Co. v. Hicklin).
1910, St. Louis & S. F. R. Co. v. Shannon, 25 Okl. 754, 108 Pac. 401 (fires set by other
engines of the defendant, admitted).
1907, Hawley v. Sumpter R. Co., 49 Or. 509, 90 Pac. 1106 (Grand Trunk R. Co. v. Richard-
son followed; but the mere occurrence of fires, without any connection shown with de-
fendant's engines, is not enough).
1909, American Ice Co. v. Pennsylvania R. Co., 224 Pa. 439, 73 Atl. 873 (emission of sparks
at another time is not alone suiBcient evidence of cause in the absence of emission at or
near the time).
1872, Burke v. Louisville & N. R. Co., 7 Heisk. 451, 456, 464 (emissions of sparks by other
engines of defendant, admitted to show "the possibiUty of the building being fired in.the
manner alleged"). 1882, Nashville & C. R. Co. v. Tyne, 7 Am. 8s Eng. R. R. Cages, 515
(foregoing case approved). 1904, Louisville & N. R. Co. v. Fort, 112 Tenn. 432, 80 S. W.
429 (foregoing cases approved).
1909, Ide V. Boston & Maine R., 83 Vt. 66, 74 Atl. 401 (remoteness of time of other instances
is in trial Court's discretion).
§ 456. Sparks as Evidence of Defective Construction.
[Note 4; add:]
1906, Illinois C. R. Co. v. Bailey, 222 111. 480, 78 N. E. 833 (rule of First Nat'l Bank v. R.
Co. followed, but citing no authority).
1906, Cleveland C. C. & St. Louis R. Co. v. Loos, 38 Ind. App. 1, 77 N. E. 948 (where the
engine is identified, fires by other engines are excluded).
1904, Sprague v. Atchison, T. & S. F. R. Co., 70 Kan. 359, 78 Pac. 828 (where the engine is
identified, emissions by other engines of the defendant is not admissible to show negligent con-
struction or operation; the Court cites fourteen decisions from other jurisdictions, but pays
no attention to the last two in its own records ; the Court's logic is also fallacious).
1907, Chesapeake & O. R. Co. v. Richardson, — Ky. — , 99 S. W. 642 (spark-emissions by
other engines under the same management and similarly equipped, admitted).
1906, Knott V. Cape Fear 8s N. R. Co., 142 N. C. 238, 98 S. E. 150 (former emissions by the
111
§456 CIRCUMSTANTIAL EVIDENCE
[Note 4 — contimied]
same engine, admitted). 1908, Whitehurst v. Atlantic C. L. R. Co., 146 N. C. 588, 60 S. E.
■648 (other fire set by the same train the week before, admitted).
1904, Anderson v. Oregon R. Co., 45 Or. 211, 77 Pae. 119 (Koontz v. R. Co. cited).
1905, Shelly v. Phila. & R. R. Co., 211 Pa. 160, 60 Atl. 581 (Henderson Case approved).
1909, Byers v. Baltimore & O. R. Co., 222 Pa. 547, 72 Atl. 245 (Henderson v. R. Co.
followed). 1911, John Hancock Ice Co. v. Perkiomen R. Co., 231 Pa. 117, 80 Atl. 63 (other
emissions of sparks, admitted where the engine causing the fire was identified).
1903, Louisville & N. R. Co. v. Short, 110 Tenn. 713, 77 S. W. 936 (fires set nine or ten
months before, admitted, but not fires set when the engines were equipped differently ; the
rule as to identified engines, not passed upon). 1904, Louisville & N. R. Co. i). Fort, 112
Tenn. 432, 80 S. W. 429 (other emissions of sparks from other locomotives of the defendant,
admitted, "to show habitual negligence" ; Pennsylvania rule of identification repudiated).
1904, Norfolk & W. R. Co. v. Briggs, 103 Va. 105, 48 S. E. 521 (fires set by other unidentified
engines, not shown to be of the same construction, excluded).
§ 457. Corporal Effects and Symptoms.
[Note 1; add:]
1906, Hisler v. State, 52 Fla. 30, 42 So. 692 (target-experiments, to show the scattering of
shot, admitted).
1906, State v. Nowells, — la. — , 109 N. W. 1016 (experiments as to powder-marks from
gunshots, admitted, in discretion). 1910, Scott v. Homesteaders, 149 la. 541, 129 N. W.
310 (experiments with pistol-shots on hog-flesh admitted).
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (experiments as to cutting a body, ex-
cluded).
1904, LilUe «. State, 72 Nebr. 228, 100 N. W. 316 (experiments to show the distance of a
pistol, as shown by powder-marks, admitted).
1908 Pollock V. State, 136 Wis. 136, 116 N. W. 851 (experiments with a pistol, admitted).
[Note 2; add:]
1908, Hales v. Kerr, 2 K. B. 601 (action against a barber for negligent use of razors, etc.
by which he had cut the plaintiff and caused the plaintiff to have barber's itch, about
October, 1907 ; the plaintiff never went to any other barber-shop ; the fact that two
other persons had acquired the itch at the defendant's shop, held admissible, as showing
the uncleanly condition of the razors, etc.).
1912, Boemer Fry Co. v. Mucci, — la. — , 138 N. W. 866 (vanilla ice-cream ; experiments as
to the jury's tasting it, held not improperly excluded).
1912, State v. Buck, 88 Kan. 114, 127 Rac. 631 (murder by poisoning ; the witnesses having
smelled the doses given by defendant to deceased, a substance was mixed and presented
to them at the trial for smelling, to testify whether it had the same odor).
1909, Mountford v. Cunard S. S. Co., 202 Mass. 345, 88 N. E. 782 (whether the plaintiff
had trachoma, a contagious eye-disease ; the fact that other persons intimately associating
with her did not contract such a disease, held admissible in discretion).
1903, Bair v. Struck, 29 Mont. 45, 74 Pac. 69 (killing and injuring sheep by dipping into a
poisonous mixture for quarantine purposes ; defendant's offer to show a similar dipping of
other sheep without fatal results, excluded, because not based on similarity of effects).
1909, Young v. Kinney, 85 Nebr. 131, 122 N. W. 678 (identity of a brand on a horse ; other
horses bearing the defendant's brand, allowed to be examined to determine its features).
[Note 3; add:]
1904, State v. Good, 56 W. Va. 215, 49 S. E. 121 (sale of an intoxicating liquor called "Rikk" ;
the purchase and use of the same drink in similar bottles by other persons about the same
time, without intoxicating effect, admitted ; citing other rulings).
112
CAUSE, CONDITION, ETC., OF EVENT OR THING §458
[Note 4:-, add:]
Compare the citations in § 439, ante.
§ 458. Similar Injuries to Other Persons.
[Note 2; add:]
1904, Davis v. Kornman, 141 Ala. 479, 37 So. 789 (injury at a machine ; prior defects of
operation, admitted).
1906, Sheehan v. Hammond, 2 Cal. App. 371, 84 Pac. 340 (injury at a telephone factory;
that no such injury had been received before, excluded, but on the futile and absurd ground
that "the owner cannot by way of excuse show that no prior injury had occurred").
1907, Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 Pac. 922 (injury at a sidewalk
obstruction ; that other persons also had tripped on it, excluded ; an old-fashioned decision,
citing Collins v. Dorchester, et al.).
1905, Mobile & O. R. Co. v. Vallowe, 214 111. 124, 73 N. E. 416 (injury at a coal chute ;
absence of injuries at that place for the several years it had been in use, offered to show its
safety, excluded, on the ground of multifarious issues ; the only "legitimate purpose of such
evidence is to show notice," under § 252, ante). 1907, Chicago, R. I. & P. R. Co. v. Rath-
neau, 225 111. 278, 80 N. E. 119 (freight car injury; that the witness did not know of any
prior instance of a "stake being high enough to strike the rail," allowed).
1907, Chicago v. Jarvis, 226 111. 614, 80 N. E. 1079 (fall at a coal-hole ; prior falls of ten or
eleven other people, admitted to show "that the common cause of the accidents was a
dangerous and unsafe thing").
1909, Laurie Co. v. McCullough, 174 Ind. 477, 90 N. E. 1014 (personal injury by slipping
on an oiled floor in a store ; that no similar accidents had occurred during a number of years
of user of such floor-dressing, admitted).
1910, Laurie Co. v. McCullough, 174 Ind. 477, 92 N. E. 337 (injury on a floor dressed with
oil ; that no accidents had occurred elsewhere from the use of such oil under similar circum-
stances, admitted; Nave v. Flack and other cases, distinguished).
1906, Heinmiller v. Winston Bros., 131 la. 32, 107 N. W. 1102 (cited post, § 461, n. 2 ; Hud-
son V. R. Co., supra, apparently approved, ignoring the intervening cases).
1904, Cunningham v. Clay, 69 Kan. 373, 76 Pac. 907 (Topeka v. Sherwood followed; ad-
mitting the fright of other teams to show the nature of a highway obstruction).
1904, Yates v. Covington, 119 Ky. 228, 83 S. W. 592 (defective sidewalk ; frequent instances
of falls by other persons at the same place, admitted ; following Dist. Columbia v. Armes,
U. S., etc.).
1904, Cohen v. Hamblin & Russell Mfg. Co., 186 Mass. 544, 71 N. E. 948 (injury to a child
at a machine ; prior injuries to other children at the same machine, excluded). 1907, Yore
V. Newton, 194 Mass. 250, 80 N. E. 472 (upsetting of a wagon in a highway ; the effect
of the highway on other wagons during five years, held not improperly excluded in the trial
Court's discretion). 1910, Walker v. Williamson, 205 Mass. 514, 91 N. E. 885 (prior
fall of a block, held not improperly excluded in discretion). 1913, Williams v. Winthrop,
213 Mass. 581, 100 N. E. 1101 (highway defect; Collins v. Dorchester followed). 1913,
Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633 (that other machines had skidded at that
place, held admissible in discretion).
1904, Gregory v. Detroit U. R. Co., 138 Mich. 368, 101 N. W. 546 (prior accidents at the
same place, excluded; "such testimony is only admissible to show notice and knowledge
of the defects," which was here conceded ; the above cases prior to Corcoran v. Detroit are
ignored). 1905, Vander Velde v. Leroy, 140 Mich. 359, 103 N. W. 812 (that others had
fallen off the same sidewalk, excluded, the conditions having been materially changed).
1908, Woodworth v. Detroit United R. Co., 153 Mich. 108, 116 N. W., 549 (similar prior
wagon-accidents at the same place in a highway, admitted ; overruling Gregory v. Detroit
U. R. Co. ; admitting the evidence not merely to show notice, but to show the defective
condition of the highway).
113
§458 CIRCUMSTANTIAL EVIDENCE
[Note 2 — continued]
1906, Charlton v. St. Louis & S. F. R. Co., 200 Mo. 413, 98 S. W. 529. (proximity of a crane ;
another person's former experience, admitted).
1909, Fisher v. Boston & M. R. Co., 75 N. H. 184, 72 Atl. 212 (injury at a platform ; passage
of other persons without injiu-y, admitted).
1907, Bobbink v. Erie R. Co., 75 N. J. L. 913, 69 Atl. 204 (that other horses had caught
their feet in a railroad frog, excluded). 1909, Alcott v. Public Service Corp., 78 N. J. L.
482, 74 Atl. 499 (wagon caught in a track-switch ; other incidents of a similar sort at the
same place, from 3 to 13 days before, held admissible ; Temperance Hall Ass'n distinguished,
and impUedly disapproved).
1903, Kingfisher v. Altizer, 13 Okl. 121, 74 Pac. 107 (injury on a defective bridge ; other prior
accidents at the same place, admitted to show the "state of repair").
1901, Hansen v. Seattle L. Co., 41 Wash. 349, 83 Pac. 102 (prior accidents at the same and
similar cog-wheels, admitted). 1903, Smith v. Seattle, 33 Wash. 481, 74 Pac. 674 (trap-door
in a sidewalk ; falls of other persons at the same place, admissible to show the condition of
the sidewalk ; following Elster v. Seattle and District v. Armes, U. S., supra). 1904, Franklin
J). Engel, 34 Wash. 480, 76 Pac. 84 (preceding cases followed). 1913, Armstrong v. Yakima
Hotel Co., 75 Wash. 477, 135 Pac. 233 (another fall at a step 47 days before, admitted,
no change of conditions being shown; but improperly limited to the purpose of showing
notice).
1905, Garske v. Ridgeville, 123 Wis. 503, 102 N. W. 22 (prior instances of safe driving at a
highway defect, excluded).
§ 459. Mental and Moral Effects ; General Principle.
[Note 2; add:]
In a few jurisdictions it is settled that the usual conduct of other persons is of itself a legal
standard of care; e.g.: 1905, Boop x. Laurelton L. Co., 212 Pa. 523, 61 Atl. 1021.
§ 460. Measures of Time, Space, Light, etc.
[Note 1; add:] '
1905, Spires s. State, 50 Fla. 121, 39 So. 181 (whether a person could be recognized by the
flash of a gun ; an experiment for that purpose in the jury-room, held not improperly refused
in the trial Court's discretion, chiefly because similarity of conditions was not shown).
1904, Hauser v. People, 210 111. 253, 71 N. E. 416 (burglary; whether the accused could be
identifled as testified to, allowed to be shown by tests of visibility made under the same
conditions).
1905, Chicago & E. I. R. Co. v. Crose, 214 111. 602, 73 N. E. 865 (experiment as to seeing
a railroad track, excluded, because the conditions were dissimilar).
1907, Baker «. Harrington, 196 Mass. 339, 82 N. E. 33 (fall on a hall-stairway ; experiments
and observations under conditions substantially the same, to test the light, held not im-
properly admitted in the trial Court's discretion).
1908, Harrison v. Southern R. Co., 93 Miss. 40, 46 So. 408 (experiments as to distance at
which a trespasser could be seen on the track, allowed).
1904, Healey v. Bartlett, 73 N. H. 110, 59 Atl. 617 (whether a testator was in such a position
that he could see the attesting witnesses; experiments allowed in the tria,l Court's dis-
cretion).
[Notei; add:]
1909, Johnson ii. Chicago, R. I. & P. R. Co., 80 Kan. 456, 103 Pac. 90 (railway-crossing
injury; experiments made under similar conditions to determine whether train noise
would be deadened by adjacent land formation, etc., held admissible).
114
cause;, condition, etc., of event or thing §461
_^ [Note 3 — continued]
1906, Dow V. Bulfinch, 192 Mass. 281, 78 N. E. 416 (experiments to show whether conversa-
tion could be distinguished in an adjacent room, held not improperly excluded in discretion).
[Note 8; add:]
1905, State v. Donovan, 128 la. 44, 102 N. W. 791 (seduction under hypnotism ; defendant's
power evidenced by other instances).
1906, Tackman v. Brotherhood, 132 la. 64, 106 N. W. 350 (suicide by hanging with a bridle ;
experiments with other persons under similar conditions, admitted to show the probability
of accidental death).
1910, State v. McKowen, 126 La. 1075, 53 So. 353 (experiment as to the possibility of
carrying a corpse in a wagon, allowed).
1904, Zimmer v. Fox R. V. E. R. Co., 123 Wis. 643, 101 N. W. 1099 (experiments as to
riding on a car, held allowable in the trial Court's determination as to similarity).
§ 461. Measure of Negligence, Danger, Insufficiency, etc.
[Note 1; aM:]
It is sometimes said that a statute or municipal ordinance forbidding or enjoining certain
conduct is evidence of negligence, on the question whether the doing or not doing of that
kind of act was negligent ; e.g. : 1904, Frontier Steam Laundry Co. v. Connolly, 72 Nebr.
767, 101 N. W. 995 (ordinance requiring fire-shutters).
1905, Finnegan v. S. W. S. Mfg. Co., 189 Mass. 580, 76 N. E. 192.
Now it is true that such an ordinance might be used evidentially, on the same theory as the
numerous instances cited post, because it is virtually a custom or usage having orthodox
status. But in many of such opinions the Court has rather in mind the operation of the
ordinance in substantive law, fixing a standard of negligence per se, on the theory explained
in all treatises on Torts, and by the present writer in an article in the Harvard Law Re-
view (VIII, 389). It seems unwise, therefore, to give any secondary status to such an ordi-
nance, as evidence' of negligence, whenever it is not to have the substantive status of a rule
of negligence per se. No doubt some Courts, in referring to it as evidence, are virtually
thinking of it as a rule of substantive law. Compare § 283, n. 8, and § 459, n. 2, ante.
The regulations of a railroad or similar company may have a bearing in cases like the
present ; but they are then virtually admissions by the company that certain conduct is or
is not negligent {ante, §§ 282, 283, n. 8).
[Note 2; add:]
1906, Heinmiller v. Winston Bros., 131 la. 32, 107 N. W. 1102 (horses frightened by a steam
shovel; fright of two other horses on the same day at the same place, admitted). 1913,
Schmidt v. Dubuque Co., 136 la. 401, 113 N. W. 820 (fright of other horses at the same
bridge, admitted).
1904, Powell V. Nevada C. & O. R. Co., 28 Nev. 40, 78 Pac. 978 (fright of a horse .at a
whistle; fright of another horse at the same whistle, admitted).
1909, Wilkie v. Chehalis Co. L. & T. Co., 55 Wash. 324, 104 Pac. 616 (one instance of another
horse being frightened at fresh meat, excluded, apparently on the principle of § 41, ante;
the present line of authorities not considered).
[Note 3; add:]
1904, MuUin v. Boston Elev. R. Co., 185 Mass. 522, 70 N. E. 1021 (injury received, while
a passenger, during a collision of cars ; that no other passengers received any injury, ad-
mitted to show the force of the collision, etc.).
Distinguish the following : 1905, Foss v. Portsmouth D. & Y. R. Co., 73 N. H. 246, 60
Atl. 747 (collision ; that no other passenger had made complaint or claim, excluded).
115
§461 CIRCUMSTANTIAL EVIDENCE
[Note 4:; add:]
1910, Grand Trunk Western R. Co. v. Poole, 175 Ind. 567, 93 N. E. 26. (contributory negli-
gence in going in front of cars to make couplings ; custom in defendant's yards to do so,
admitted).
1906, Wallace v. Seaboard A. L. R. Co., 141 N. C. 646, 54 S. E. 399 (custom as to coupling
cars, adopted by the master carbuilders' association, admitted).
[Note 5, p. 569; add:]
1903, Northern Ala. R. Co. v. Mansell, 138 Ala, 548, 36 So. 459 (death at a stock-gap ; the
usage on other well-regulated roads, admitted, but not taken as a standard). 1909, Bir-
mingham R. L. & P. Co. V. Morris, 163 Ala. 190, 50 So. 198 (rule and custom of a street
railroad as to mode of stopping cars, admitted; approving the above distinction).
1906, Denver & R. G. R. Co. v. Burchard, 35 Colo. 539, 86 Pac. 749 (experience of other
railroads as to the location of mail cranes, admitted).
1904, Orient Ins. Co. v. Northern P. R. Co., 31 Mont. 502, 78 Pac. 1036 (relative quantity
of spark-emissions of other engines, admitted).
1905, Pittsbm'gh S. & N. R. Co. v. Lamphere, 137 Fed. 20, 69 C. C. A. 542 (custom as to
telltales on low bridges, admitted).
1906, Southern R. Co. v. Blanford's Adm'x, 105 Va. 373, 54 S. E. 1 (custom of other rail-
roads in Virginia, and other parts of defendant's railroad, as to switchlights, admitted).
1912, Egelston v. New York C. & St. L. R. Co., 205 N. Y. 579, 98 N. E. 748 (regulations of
other railroads as to shunting, admitted).
[Note 5, p. 571 ; change the note-number to 5o, and add:]
1904, Davis v. Komman, 141 Ala. 479, 37 So. 789 (injury at a machine ; correct rule laid
down).
1905, Hazard P. Co. 1>. Somersville M. Co., 78 Conn. 171, 61 Atl. 519 (time of running of
mills, on an issue as to unreasonable diversion of water; custom of other mills, admitted).
1905, Clements v. Potomac E. P. Co., 26 D. C. App. 482, 495 (custom as to uninsulated
wires, excluded because here an express municipal prohibition applied)!,
1904, Illinois C. R. Co. v. Prickett,210 111. 140,71 N. E. 435 (boiler-explosion; the custom
of other companies as to inspection must be that of "well regulated and prudently managed"
ones). 1905, Hansell-Elcock F. Co. v. Clark, 214 111. 399, 73 N. E. 787 (iron column causing
injury ; the Court ignore the distinction between admitting evidence and fixing a standard
of care; "usual and customary manner" of construction, said to be inadmissible). 1905,
Siegel, Cooper & Co. v. Trcka, 218 111. 559, 75 N. E. 1053 (usual manner of constructing
elevator doors, excluded). 1908, Franey v. Union Stockyard k T. Co., 235 111. 522, 85 N. E.
750 (injury in climbing over a fence between stock-pens ; custom of others admitted as evi-
dence of the degree of care required).
1908, Knickerbocker Ice Co. v. Gray, 171 Ind. 395, 84 N. E. 341 (oil pans and drains; cus-
tom "in most places," admitted). 1909, Laurie Co. v. McCuUough, 174 Ind. 477, 90 N. E.
1014 (personal injury by slipping on an oiled floor in a store ; the custom of using such
floor-dressing in other stores in the same city, admitted; leading case).
1906, Wilder v. Gt. Western C. Co., 134 la. 451, 109 N. W. 789 (usual method of fastening
pile-drivers, admitted).
1905, Mahan v. Daggett, — Ky. — , 84 S. W. 525 (nuisance ; manner of disposing of sawdust
in other mills, admitted). 1906, Louisville B. & I. Co. v. Hart, — Ky. — , 92 S. W. 951
(custom in rolling-mills, admitted ; good opinion, by O'Rear, J.).
1909, Consolidated G. E. L. & P. Co. v. State, 109 Md. 186, 72 Atl. 651 (electric linemen's
practice).
1904, Dolan v. Boott Cotton Mills, 185 Mass. 576, 70 N. E. 1025 (uncovered machine-
gearing ; the condition of such gearing in other mills, held admissible, in the trial Court's
discretion; distinguishing the rulings as to actions against towns for defective highways).
116
CAUSE, CONDITION, ETC., OF EVENT OR THING §461
[Note 6 — continued]
1909, Anderson v. Pitt I. M. Co., 108 Minn. 261, 121 N. W. 915 (custom as to timbering
mines, admitted).
1904, Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357 (custom to use a certain tool, ad-
mitted, but not as conclusive).
1904, Dell V. McGrath, 92 Minn. 187, 99 N. W. 629 (customary number of men in skidding,
admitted).
1903, Saucier v. N. H. Spinning Mills, 72 N. H. 292, 56 Atl. 545 (equipment of other ma-
chines not shown to be in common use, excluded, but equipment in general use, admitted).
1904, Jenks v. Thompson, 179 N. Y. 20, 71 N. E. 266 (injury on a scaffold ; general custom as
to building scaffolds, admitted).
1906, Jones v. Reynolds T. Co., 141 N. C. 202, 53 S. E. 849 (general custom as to protecting
a machine, admitted).
1909, McGeehan v. Hughes, 223 Pa. 624, 72 Atl. 856 (bucket).
1908, Chicago Gt. Western R. Co. v. McDonough, 8th C. C. A., 161 Fed. 657, 665 (boiler
explosion ; custom of other boiler owners as to annual inspection, admitted ; careful opinion
by Van Devanter, J.). 1913, Stone & Webster E. Co. ». Melovich, 9th C. C. A., 202 Fed. 438
(custom to guard cogwheels, admitted).
1904, Pence v. California M. Co., 27 Utah 378, 75 Pac. 934 (custom as to using inexperienced
miners, admitted).
1904, Parlett v. Dunn, 102 Va. 459, 46 S. E. 467 (usual method of putting up a derrick,
allowed).
1904, Richmond & P. E. R. Co. v. Rubin, 102 Va. 809, 47 S. E. 834 (guard wires on telephone
lines). 1906, Norfolk & W. R. Co. v. Bell, 104 Va. 836, 52 S. E. 700 (water-gauge ; making
a peculiar distinction against, testimony that other appliances are safer).
1904, Crocker v. Pacific L. & M. Co., 34 Wash. 191, 75 Pac. 632 (custom as to guarding
ripsaws, admitted). 1905, Dossett v. St. Paul & T. L. Co., 40 Wash. 276, 82 Pac. 273
(customs in other mills as to sawyers' duties, admitted). 1909, Smith v. Hewitt-Lea L. Co.,
55 Wash. 357, 104 Pac. 651 (machinery; the precise decision is here difficult to discover).
1905, Rylander v. Laursen, 124 Wis. 2, 102 N. W. 341 (spark-arrester of a mill; distinguish-
ing between the evidence and the standard of care). 1908, Hamann v. Milwaukee Bridge
Co., 136 Wis. 39, 116 N. W. 854 (custom elsewhere as to safeguards for a machine, admitted).
[Note 6; add:]
1904, Norris v. Cudahy P. Co., 124 la. 748, 100 N. W. 853 (conduct of other people at a
highway trench, admitted). 1904, Kein v. Ft. Dodge, 126 la. 27, 101 N. W. 443 (highway
injury ; that the mode of construction was similar to that in general use in the city, admitted,
but only to show the plaintiff's knowledge).
1906, Moynihan v. Holyoke, 193 Mass. 26, 78 N. E. 742 (slippery cellar-lights in a side-
walk ; usual use of similar lights in other sidewalks, held admissible or not in the trial Court's
determination; good opinion by Knowlton, C. J.). 1906, Erickson v. American S. & W.
Co., 193 Mass. 119, 78 N. E. 761 (boiler-tests ; similar ruling).
1904, Comstock v. Georgetown, 137 Mich. 541, 100 N. W. 788 (custom as to the load taken
upon a bridge, admitted in an action for an injury to the driver of a traction engine).
1904, Chaffin v. Fries M. & P. Co., 135 N. C. 95, 47 S. E. 226 (overflow by a dam ; certain
similar effects excluded and others admitted).
1903, Smith v. Seattle, 33 Wash. 481, 74 Pac. 674 (protected condition of other sidewalks
in the same city, admitted, partly on the present ground and partly as negativing contribu-
tory negligence).
[Note 7; add:]
1905, Pauksztis v. Raeder B. L. & P. Co., 212 Pa. 403, 61 Atl. 901 (customer's books burned
at a book-binder's ; the usage of book-binders to insure customers' books, admitted).
117
1 461 i CIRCUMSTANTIAL EVIDENCE
[Note 8; aM:]
1907, Long V. Athol, 196 Mass. 497, 82 N. E. 665 (rescission for mutual mistake, the plaintiff
being the accepted bidder on a contract based on erroneous engineer's estimates ; that other
bidders also relied on the estimate, held admissible on the issue of the plaintiff's negligence).
[Note 12, col. 1, 1. 2 from below; add:]
how the case of R. v. Hone influenced this result is interestingly told in J. Routledge's
"Chapters in the History of Popular Progress, chiefly in Relation to the Freedom of the
Press and Trial by Jury," p. 433 (1876).
§ 462. Business Patronage.
1907, Hutchinson L. Co. v. Dickerson, 127 Ga. 328, 56 S. E. 491 (that similar lumber sold
to other sawmills was sound, not admitted).
1913, Noyes v. Meharry, 213 Mass. 598, 100 N. E. 1090 (false representations as to
patronage-value of a theater ; the falling off in receipts immediately after the purchase,
admitted). ,
Compare the cases cited ante, § 377 ; there the question involves the va;riabiUty of human
conduct in forming contracts ; here, the uniformity 6i quality of some inanimate substance ;
and in the present class of cases the doubt arises to the extent that the variabiUty of human
conduct in the performance of similar contracts is involved.
§ 463. Value, from Sales of Similar Property.
[Note 1 ; at the end, add :]
Whether an offer to purchase or sell, as distinguished from an actual sale, is admissible, is a
question of the standard of value :
1906, Yellowstone P. R. Co. v. Bridger C. Co., 34 Mont. 545, 87 Pac. 963 (collecting cases).
Whether business profits in one year may be evidenced by profits in another year :
1913, Nelson Theater Co. v. Nelson, — Mass. — , 102 N. E. 926 (value of a leasehold to
an evicted theater operator; receipts and profits in prior years, held admissible).
[Note 2; add:]
1913, Flemister v. Central Ga. P. Co., 140 Ga. 511, 79 S. E. 148 (similar sales, admissible-
here excluded because of the form of the question).
1904, Tennessee C. I. & R. Co. v. State, 141 Ala. 103, 37 So. 433 (sales of other similar coal
lands, received).
1904, Comstock v. Conn. R. & L. Co., 77 Conn. 65, 58 Atl. 465 (corporal ' injury to a
keeper of a boarding-house; profits before and after the injury, admitted).
1891, O'Hare ». Chicago M. & N. R. Co., 139 111. 151, 157, 28 N. E. 923 ("voluntary sales of
other lands, in the vicinity and similarly situated as affecting their value," are admissible ;
but here a mere deed reciting consideration was excluded). 1903, Spohr v. Chicago, 206 111.
441, 69 N. E. 515 (allowable on cross-examination). 1904, Illinois ,1. & M. R. Co. v.
Humiston, 208 111. 100, 69 N. E. 880 (eminent domain ; price paid for other lands, excluded).
1904, Dady v. Condit, 209 111. 488, 70 N. E. 1088 (breach of contract to sell land ; sales of
similar lands in the vicinity, admitted to show "the actual cash value of the land in contro-
versy at a certain time" ; prior rulings not noticed, except St. Louis, V. & T. H. R. Co. v.
Haller). 1904, Springer v. Borden, 210 111. 518, 71 N. E. 345 (appraisal of valuation of
lease; rental values in the vicinity, held not admissible; no authority cited). 1906,
Chicago & S. L. R. Co. v. Kline, 220 111. 334, 77 N. E. 229 ("voluntary sales of other lands in
the vicinity similarly situated" in locality and character, admissible). 1906, Chicago &
S. L. R. Co. V. Mines, 221 111. 448, 77 N. E. 898 (sales of property not similar, excluded).
118
CAUSE, CONDITION, ETC., OF EVENT OR THING §463
[Note 2 — continued]
1907, Chicago & A. R. Co. v. Scott, 225 111. 352, 80 N. E. 404 (eminent domain ; the amounts
paid by this and other railroads for land in the vicinity, excluded). 1909, West Skokie
Drainage District v. Dawson, 243 111. 175, 90 N. E. 377 (Peoria Gaslight Co. v. T. T. R.
Co., followed). 1910, Aledo Terminal R. Co. v.. Butler, 246 111. 406, 92 N. E. 909 (voluntary
sales of similar lands, admitted, the trial Court to determine whether they are similar).
1913, Smith v. Sanitary District, 260 111. 453, 103 N. E. 254 (sales of similar property,
admitted).
1912, Cleveland C. C. & St. Louis R. Co. v. Smith, 177 Ind. 524, 97 N. E. 164 (eminent
domain ; other purchases for the same right of way, excluded, on mixed grounds, citing no
Indiana cases ; loosely worded).
1905, Simons v. Mason C. & F. D. R. Co., 128 la. 139, 103 N. W. 129 (eminent domain;
price paid by the railway company for other rights of way, not similarly situated, excluded ;
but the ruling seems to apply to all prices paid under eminent domain).
1910, Baltimore, City of, v. Hurlock, 113 Md. 674, 78 Atl. 558 (sales etc. of property in the
neighborhood, admitted, as the basis of the expert witness' testimony to value).
1904, Chicago, St. L. & N. 0. Co. v. Rottgering, — Kjr. — , 83 S. W. 584 (similar).
1912, Fourth National Bank v. Commonwealth, 212 Mass. 66, 98 N. E. 686 (dissimilarity
not shown on the facts).
1909, Rourke v. Holmes, St. R. Co., 221 Mo. 46, 119 S. W. 1094 (Jamieson v. R. Co., N. Y.,
followed ; foregoing cases ignored).
1904, Union P. R. Co. v. Stanwood, 71 Nebr. 150, 91 N. W. 191, 98 id. 656 (particular sales,
excluded, except on cross-examination).
1906, Hadley v. Board, 73 N. J. L. 197, 62 Atl. 1132 (Laing v. R. Co. followed). 1908,
Brown v. New Jersey S. L. R. Co., 76 N. J. L. 795, 71 Atl. 271 (admissible in discretion).
1912, Manda v. Orange, 82 N. J. L. 686, 82 Atl. 869 (like Laing v. R. Co.).
1906, Hindley v. Manhattan R. Co., 185 N. Y. 335, 78 N. E. 276 (damage by eminent
domain, the defendant pleading prescription; the defendant's settlements with two hun-
dred other abutters, excluded; following Jamieson v. R. Co.). . 1907, Shaw v. N. Y. Elev.
R. Co., 187 N. Y. 186, 79 N. E. 984 (value of adjacent premises, admitted on the facts ;
three judges diss.).
1906, Vidger Co. v. Great Northern R. Co., 15 N. D. 501, 107 N. W. 1083 (apples; not
decided).
1906, Gorgas v. Philadelphia H. & P. R. Co., 215 Pa. 501, 64 Atl. 680 (eminent domain;
"a witness may qualify himself ... by showing that he has a knowledge of sales in the
community, . . . but he cannot be interrogated in chief as to the money values of similar
properties"; on cross-examination he may be asked "his knowledge of particular sales
and the prices asked"). 1906, Davis v. Pennsylvania R. Co., 215 Pa. 581, 64 Atl. 774
(a witness to land-value may be cross-examined on voire dire to test his qualifications, by
asking him as to values; compare § 654, post). 1907, Schonhardt v. Pennsylvania R. Co.,
216 Pa. 224, 65 Atl. 543 (cross-examination to other sales, not allowed where its object
was "to have his testimony go to the jury on the question of value"). 1908, Neely ii.
Western Allegheny R. Co., 219 Pa. 349, 68 Atl. 829 (cross-examination allowed to particu-
lar sales, but not to particular values ; the rule of this State, being unsound to start with,
is now leading to tweedle-dum and tweedle-dee distinctions). 1910, Rea «. Pittsburg &
C R. Co., 229 Pa. 106, 78 Atl. 73 (cross-examination to a former sale of the same property,
allowed).
1905, Kean v. Landrum, 72 S. C. 556, 52 S. E. 421 (value of timber on adjoining land, ad-
mitted).
1905, Union R. Co. v. Hunton, 114 Tenn. 609, 88 S. W. 182 (eminent domain ; sales in the
jieighborhood, admitted).
1912, Telluride Power Co. v. Bruneau, — Utah — , 125 Pac. 399 (not decided).
1909, American States S. Co. v. Milwaukee N. R. Co., 139 Wis. 199, 120 N. W. 844 (sales
of similar land, admissible).
119
§478 TESTIMONIAL EVIDENCE
§ 478. Analysis of Elements of a Testimonial Assertion.
[Note 1; add:]
1906, Train, The Prisoner at the Bar, 224 ("The probative value of all honestly given
testimony depends, naturally, first, upon the witness' original capacity to observe; sec-
ond, upon the extent to which his memory may have played him false; and third, upon
how far he really means exactly what he says. . . . The authoritativeness of everything
these witnesses have to say must lie in their ability to see, remember, and describe accurately
what they have seen").
§ 488. Statutes Affecting Testimonial Qualifications.
[Note 1 ; add :]
England : 1898, St.61-2 Vict. c. 36, Criminal Evidence Act : "Every person charged with
an offence, and the wife or husband, as the case may be, of the person so charged, shall be
a competent witness for the defence at every stage of the proceedings, whether the person
so charged is charged solely or jointly with any other person. Provided as follows : —
" (a) A person so charged shall not be called as a witness in pursuance of this Act except
upon his own application ;
" (6) The failure of any person charged with an offence, or of the wife or husband, as the
case may be, of the person so charged, to give evidence shall not be made the subject of
any comment by the prosecution;
" (c) The wife or husband of the person so charged shall not, save as in this Act men-
tioned, be called as a witness in pursuance of this Act except upon the application of the
person so changed;
" (d) Nothing in this Act shall make a husband compellable to disclose any communica-
tion made by him to his wife during the marriage, or a wife compellable to disclose any
communication made to her by her husband during the marriage ;
" (e) A person charged and being a witness in pursuance of this Act may be asked any
question in cross-examination notwithstanding that it would tend to criminate him as to
the offence charged ;
" (/) A person charged and called as a witness in pursuance of this Act shall not be asked,
and if asked shall not be required to answer, any question tending to show that he has com-
mitted or been convicted of or been charged with any offence other than that wherewith
he is then charged, or is of bad character, unless —
" (i) the proof that he has committed or been convicted of such other offence is admis-
sible evidence to show that he is guilty of the offence wherewith he is then charged ; or
" (ii) he has personally or by his advocate asked questions of the witnesses or the prose-
cution with a view to estabUsh his own good character, or has given evidence of his good
character, or the nature or conduct of the defence is such as to involve imputations on the
character of the prosecutor or the witnesses for the prosecution ; or
" (iii) he has given evidence against any other person charged with the same offence :
" ig) Every person called as a witness in pursuance of this Act shall, unless otherwise
ordered by the Court, give his evidence from the witness box or other place from which
the other witnesses give their evidence :
" (h) Nothing in this Act shall affect the provisions of sectidn eighteen of the Indictable
Offences Act, 1848, or any right of the person charged to make a statement without being
sworn.
" 2. Where the only witnesses to the facts of the case called by the defence is the person
charged, he shall be called as a witness immediately after the close of the evidence for the
prosecution.
" 3. In cases where the right of reply depends upon the question whether evidence has
been called for the defence, the fact that the person charged has been called as a witness
shall not of itseM confer on the prosecution the right of reply.
120
QUALIFICATIONS § 48S
[Note 1 — continued]
'4. (1) The wife or husband of a person charged with an ofifence under any indictment
mentioned in the schedule to this Act may be called as a witness either for the prosecution
or defence and without the consent of tlie person charged.
" (2) Nothing in this Act shall affect a case where the wife or husband of a person charged
with an offence may at common law be called as a witness without the consent of that
person."
1904, St. 4 Edw. VII, c. 15, § 12 (Prevention of Cruelty to Children Act; in trials of any
person for offences under this act, "such persons shall be competent but not compellable
to give evidence, and the wife or husband of such person may be required to attend to give
evidence as an ordinary witness in the case and shall be competent but not compellable
to give evidence").
St. 1908, 8 Edw. VII, c. 67, § 27 (Children Act; the provisions of the Criminal Evidence
Act to apply).
St. 1912, 2-3 Geo. V, c. 20, § 7 (vagrancy offences; wife or husband "may be called a&
a witness either for the prosecution or for the defence and without the consent of the
person charged," saving cases where at common law the same might be done).
Canada : Dominion : St. 1906, 6 Edw. VII, c. 10 (amending the Evidence Act 1893,
c. 31, § 4, by inserting in subsect. 1, after the first "and," the words "except as hereinafter
provided," and after "competent witness" the words "for the defence"; in subsect. 2,
by omitting the words "in addressing the jury" ; and by adding new subsections 3 and 4
as follows : "3. Subject to the provisions of subsection 1 of this section, the wife or husband
of a person charged with an offence against any of the sections of the Criminal Code 1892,
mentioned in schedule C to this act, shall be a competent and also a compellable witness
for the prosecution without the consent of the person charged. 4. Nothing in this act
shall affect a case where the wife or husband of a person charged with an offence may at
common law be called as a witness without the consent of a person" ; this statute seems
to have been enacted in consequence of the divided opinions in Gosselin v. King, 1903,
33 Can. Sup. 255, cited post, § 2245, n. 10).
Alberta: St. 1910, 2d sess., c. 3, Evidence Act, § 4 (no witness to be excluded for "any
alleged incapacity from crime or interest") ; § 5 ("every person offered as a witness shall
be admitted to give evidence notwithstanding" interest or conviction of crime) ; § 6
("the parties to an action," etc., shall be "competent and compellable to give evidence on
behalf of themselves or of any of the parties"; "husbands and wives of such parties and
persons shall, except as hereinafter otherwise provided, be competent and compellable to
give evidence on behalf of any of the parties") ; § 8 (like Eng. St. 1869, St. 32-33 Vict.
c. 68, § 3) ; § 9 (Uke Eng. St. 1853, 16-17 Vict. c. 83, § 3).
British Columbia: St. 1908, 8 Edw. VII, c. 15, § 73 (on trial of offences under the Fac-
tories Act, the defendant is " competent and compellable to give evidence").
Manitoba: St. 1912, 2 Geo. V, c. 101, § 10 (family desertion; "the wife shall be a com-
petent and compellable witness against the husband").
New Brunswick : St. 1905, c. 7, § 41 (offences under the factory act ; the person charged
shall be "competent and compellable to give evidence in or with respect to such complaint,
proceeding, matter, or question").
Northwest Territory : Can. Rev. St. 1886, c. 50, § 31 (interest as executor or as legatee
of a will is not to disqualify a person as witness in proving the will).
Ontario: St. 1909, c. 43, Witnesses and Evidence, § 2 (like R. S. 1897, c. 73, § 2);
§ 3 (like ib. § 3) ; § 4 (like ib. § 4) ; § 8 (like ib. § 7) ; § 9 (like ib. § 8).
Prince Edward Island: St. 1906, 6 Edw. VII, c. 12 (St. 1889, c. 9, § 10, amended by
striking out the words "not being a crime").
Saskatchewan: St. 1907, c. 12, Evidence Act, § 23 Gike Can. St. 1893, c. 31, 3); § 24
(like Ont. Kcv. St. 1897, c. 73, § 4) ; §25 (like Eng. St. 1853, c. 83, § 3).
Yukon: St. 1904, c. 5 (Evidence Ordinance), § 34 (like N. Sc. Rev. St. 1900, c. 163,
§ 34) ; ib. § 35 (like N. Sc. Rev. St. 1900, c. 163, § 35) ; ib. § 36 (like N. Sc. Rev. St. 1900,
121
§ 488 TESTIMONIAL QUALIFICATIONS
[Note 1 — continued]
c. 163, § 36) ; ib. § 37 (like N. Sc. Rev. St. 1900, c. 163, § 37) ; ib. § 38 (like N. Sc. Rev.
St. 1900, c. 163, § 38).
United States : Alabama: St. 1903, No. 9, Feb. 2 (" in all cases where a husband is
charged with abandoning his family and leaving them in danger of becoming a burden to
the public, the wife shall be a competent witness against her hugband").
California: St. 1905, c. 139 (amending P. G. § 1322 by adding to the exceptions : "or
in cases of criminal actions or proceedings brought under the provisions of § 270 of this
Code, or in cases of criminal actions or proceedings for bigamy").
St. 1907, c. 68, p. 87, Mar. 1 (adds to C. C. P. § 1881, par. 1 : "or in an action
brought by husband or wife against another person for the aUenation of affections
of either husband or wife ; or in an action for damages against another person for adultery
committed by husband or wife") ; id. c. 230, p. 290, Mar. 15 (adds, to P. C. § 1322, excep-
tions for cases under P. C. §§ 270, 270a and criminal cases of adultery or bigamy).
Colorado: St. 1911, c. 179, p. 527, May 26, § 5 (non-support of family; wife to be com-
petent against husband); St. 1911, c. 229, p. 676, June 2 (amending Annot. St. 1891,
§ 4816, Rev. St. 1908, § 7267).
Columbia (District) : St. 1906, Mar. 23, § 2, c. 1131, U. S. Stat. L. vol. 34, p. 87 (offence
of failing to support one's family ; "in all prosecutions under this act any existing provisions
of law respecting confidential communications between husband and wife shall not apply,
and both husband and wife shall be competent and compellable witnesses to testify to any
and all relevant matters, including the fact of such marriage and the parentage of such
child or children").
Delaware: St. 1887, c. 230, § 21, 18 I/aws, p. 447 (desertion of family; "any wife so
deserted shall be a competent witness in any proceeding under this act to prove the fact
of desertion or 'neglect to maintain her or any minor children under the age of ten years" ;
this Act seems to have been omitted from the Revised Statutes of 1852, ed. 1893, and thus
was not inserted in the first edition of the present work).
St. 1907, c. 243, p. 647, Mar. 14 (husband or wife may "testify for or against each other
in both civil and criminal causes").
Georgia: St. 1911, No. 207, p. 68, Aug. 25 (amending Code, 1910, vol. II, § 379, prose-
cutions for seduction, by omitting the last part after "husband," and substituting, "in
all such cases, whether the marriage to suspend said prosecution was before or after indict-
ment of said defendant").
Hawaii: St. 1913, No. 83, p. 103, Apr. 15, § 6 (in prosecutions for family desertion,
etc., no rule "prohibiting the disclosure of confidential communications between husband
and wife shall apply" ; "both husband and wife shall be competent and compellable wit-
nesses" as to any relevant fact), i
Indiana: Rev. St. 1897, § 1004, Rev. St. 1852, pt. 4, c. 3, § 1, Burns' Rev. St. 1901,
§ 990 (in a bastardy charge, "the mother of the child, if of sound mind, shall be a competent
■witness," and her written examination on making complaint before the justice may be used
"to sustain or impeach the testimony of such witness") ; ib. § 1008 (on the death of the
complainant in bastardy, her written examination before the justice "may be read in evi-
dence").
St. 1905, p. 584, §§ 235, 241 (re-enacts the above Rev. St. 1897, §§ 1889, 1895).
St. 1911, c. 174, p. 439, Mar. 4 (pandering; female who marries accused before or after the
offence's date shall be competent for or against him).
Iowa: St. 1907, c. 170, § 2 (desertion of family; husband or wife to be competent for
the State, " and may testify to any relevant acts or communications between them,"
but neither is "compelled to testify against the other under this Act," except by
consent).
Kansas: 1905, May «. May, 71 Kan. 317, 80 Pac. 567 (St. 1903, cc. 387, 388, applied'
to admit a husband's testimony to his wife's admissions).
St. 1911, c. 163, p. 247, Mar. 13, § 6 (famUy desertion; like Haw. St. 1913, No. 83)
122
QUALIFICATIONS § 488
[Note 1 — continued]
St, 1911, c. 228, p. 405, Mar. 13 (amending Gen. St. 1909, § 5914, C. C. P. 1969, § 320, in
an unspecified respect).
Kentucky: St. 1912, c. 103, p. 295 (adding a new exception to Ky. C. C. P. § 606, par.
1, for divorce on the ground of cruelty).
Louisiana: St. 1904, No. 41 (amending St. 1902, No. 185, supra, by adding to § 1, c. 29,
St. 1886, supra, the words "and except in cases where either the husband or wife is on
trial for bigamy" ; also amending St. 1902 by inserting, in § 2 of St. 1886, supra, instead
of the words "jointly indicted," the words "jointly tried").
St. 1912, No. 105, p. 123, July 8 (family desertion ; "the wife shall be a competent witness
for or against her husband").
Maryland : St. 1904, c. 661 (amends Art. 35, § 2, supra, keeping the clause that "it shall
not be competent for any party to the cause, etc., to corroborate, etc." ; but substituting,
for all the remainder, the following : "In acts or proceedings by or against executors, ad-
ministrators, heirs, devisees, legatees or distributees of a decedent as such, in which judg-
ments or decrees may be rendered for or against them, and in proceedings by or against
persons incompetent to testify by reason of mental disability, no party to the cause shall
be allowed to testify as to any transaction had with, or statement made by the testator,
intestate, ancestor, or party so incompetent to testify, either personally or through an
agent since dead, lunatic, or insane, unless called to testify by the opposite party, or
unless the testimony of such testator, intestate, ancestor, or party incompetent to testify
shall have [been ?] already given in evidence, concerning the same transaction or statement,
in the same cause, on his or her own behalf or on behalf of his or her representative in
interest; . . . [here re-enacting as above stated]").
Compare the decisions cited post, § 2065, n. 5, applying St. 1902, c. 495, supra
Massachusetts : St. 1913, c. 81 (amending Rev. L. c. 175, § 21 ; cited more fully, post,
§ 987).
Michigan : St. 1901, No. 239, supra (amending Comp. L. § 101, amended by St. 1903,
No. 30, by adding : "and provided further that whenever the deposition, affidavit, or
testimony of such deceased party taken in his lifetime shall be read in evidence in such suit
or proceeding, that the affidavit or testimony of the surviving party shall be admitted in his
own behalf on all matters mentioned or covered in such deposition, affidavit, or testimony ;
and provided further that when the testimony or deposition of any witness has once been
taken and used (or shall have heretofore been taken and used) upon the trial of any cause,
and the same was, when so taken and used, competent and admissible under this act, the
subsequent death of such witness or of any other person, shall not render such testimony
incompetent under this act, but such testimony shall be received upon any subsequent trial
of such cause").
St. 1905, No. 136 (in prosecutions for illegal marriage of persons sexually diseased, "a hus-
band shall be examined as a witness against his wife and a wife shall be examined as a wit-
ness against her husband whether such husband or wife consent or not"). ■
St. 1907, No. 144, p. 182, June 12, § 3 (family-desertion ; wife may testify against husband-
defendant, "in all complaints under this Act").
Missouri: St. 1909, p. 99, June 4, § 3 (repealing Rev. St. 1899, §§ 265-267; where the
presumption of death applies, in appUcations for administration of estates, "no person shall
be disqualified by reason of his or her relationship as husband or wife to the supposed
deceased, or by reason of his or her interest in the estate of the person supposed to be dead.")
Montana: St. 1909, c. 66, p. 80, Mar. 4 (amending C. C. P. 1895, § 3162, Rev. C. 1907,
§ 7891 ; by omitting the last clause, and substituting : "as to the facts of direct transactions
or oral communications between the proposed witness and the deceased excepting where
the executor or administrator first introduces evidence thereof, or where it appears to the
Court that without the testimony of the witness injustice will be done").
St. 1913, c. 41, p. 57, Feb. 28 (amending the foregoing statute by adding a subdiv. 4 :
"Parties or assignors of parties to an action or proceeding, or persons in whose behalf an
123
§ 488 TESTIMONIAL QUALIFICATIONS
[Note 1 — continiied]
action or proceeding is prosecuted against any person or corporation, as to the facts of
direct transaction or oral communication between the proposed witness and the deceased
agent of such person or corporation, and between the proposed witness and any deceased
officer of such corporation" ; this is a vicious provision, and shows the sinister mark of the
legislative influence of interests seeking special privilege ; why should not the saving proviso
of the judge's discretion be here equally appropriate ?).
Nebraska: St. 1905, c. 172 (amending § 331, C. C. P., being Comp. St. 1897, | 5905,
supra, by adding : "provided, however, that a wife shall be a competent witness against the
husband in all prosecutions arising under § 2375a of Cobbey's Annotated Statutes for
1903").
St. 1911, c. 177, p. 554 (pandering ; any female enticed, etc., shall be competent, "including
conversation with the accused or by him with third persons in her presence, notwithstand-
ing her having married the accused either before or after" the offence).
Nevada: St. 1909, c. 80, p. 85 (family desertion; wife to be competent "against her
husband with or without his consent").
St. 1911, c. 179, p. 359 (amending Gen. St. § 3401, by inserting after "representative of such
deceased person," in the first proviso, the words, "or when persons other than the parties
to the transaction, and claiming to have been present when the transaction took place,
testify as witness or witnesses in favor of the representative of such deceased person").
St. 1913, c. 272, p. 445 (family desertion; to prove marriage or parentage, no other evi-
dence required than "to prove said facts in a civil action"; the wife to be competent to
all relevant matters, including marriage and parentage).
New Mexico: St. 1907, c. 26, p. 24 (repealing St. 1901, c. 58, and restoring the original
text of Comp. L. § 3016).
St. 1909, c. 98, p. 256 (in any prosecution for "incest, bigamy, polygamy, unlawful cohabi-
tation, or adultery," the accused's husband or wife is competent, "and may be called, but
shall not be required to testify without the consent of such husband or wife so called as
a witness").
New York : St. 1909, c. 66, § 1, p. 85 (re-enacting St. 1876, c. 182, § 1, as C. Cr. P., § 393a).
St. 1909, c. 240, § 61, p. 408 (re-enacting P. C. § 714, now Consol. L. c. 88, § 2444, with
unspecified amendments).
St. 1912, c. 420, p. 816 (amending Greater New York Charter, § 685; desertion of family;
in all complaints hereunder, wife is to be competent "against her husband as to a!ll matters
embraced in said complaint").
NoHh Carolina: Revision 1905, §§ 870-872 (like Code 1883, §§ 585-587; it does not
appear why these sections should be any longer preserved in the law) ; Rev. 1905, § 1628
(like Code §§ 589, 1350); Rev. 1905, § 1630 (like Code § 1351); Rev. 1905, § 1631 (like
Code § 590) ; Rev. 1905, § 1636 (like Code § 688) ; Rev. 1905, § 1634 (like Code § 1353) ;
Rev. 1905, § 1635 (like Code § 1354); Rev. 1905, § 1564 (like Code § 1288; omitting the
proviso as to divorce for pregnancy at marriage; St. 1889, p. 422, supra, seems also to be
omitted) ; Rev. 1905, §§ 1632, 1633 (provision for the testimony of interested persons in
actions on judgments rendered before Aug. 1, 1868) ; Code, 1883, § 1192, is omitted, being
superfluous.
North Dakota; St. 1907, c. 119, p. 174 (amending Rev. C. 1905, § 7253, in unspecified
details) ; St. 1909, c. 109, p. 117 (amending the foregoing in unspecified particulars ; who
is the legislative tinker that keeps patching this statute ? Ne sutor ultra crepidam).
Ohio: St. 1909, p. 49, Mar. 12 (amending Rev. St. § 7284 in unspecified particulars).
Pennsylvania: St. 1907, No. 146, p. 284 ("in all civil actions brought by the husband,
the wife shall be a competent witness in- rebuttal, when her character or conduct is attacked
upon the trial thereof, but only in regard to the matter of her character or conduct" ; a
good example of ad hoc legislation, procured by some one who happened to feel the pinch
in this particular point ; could no larger idea than this occur to the legislators while they
were contemplating the subject?).
124
QUALIFICATIONS § 488
[Note 1 — continued]
St. 1909, No. 128, p. 182, § 1 (wife-desertion; amending St. 1907, May 23; "husband and
■wife shall be fully competent witnesses"; this is sensible; most such statutes make only
the wife competent).
St. 1909, No. 126, p. 179 (amending St. 1887, May 23 ; making husband and wife com-
petent in a criminal proceeding for bodily injury etc. upon minor children).
St. 1911, May 11, p. 269 (amending St. 1887, May 23, Witnesses, § 2, Clause B ; husband
and wife may testify to fact of marriage on a charge of bigamy).
St. 1911, June 8, p. 720 (divorce on ground of desertion ; libellant to be competent to prove
desertion, etc.).
St. 1913, Mar. 27, p. 14 (amending St. 1893, June 8, § 4 ; in separate property suits "brought
by either husband or wife," both are competent). ■
South Dakota: St. 1911, c. 249, p. 429 (amending C. C. P. 1903, § 486, in unspecified
particulars) ; St. 1913, c. 371, p. 610 (same section again amended).
^St. 1913, c. 370, p. 609 (repealing P. C. 1903, § 803, and transferring its provisions to § 802).
United States: St. 1906, June 29, c. 3608, Stat. L. vol. 34, p. 618 (Rev. St. 1878, § 858,
is amended so as to read as follows : "The competency of a witness to testify in any civil
action, suit, or proceeding ih,the courts of the United States shall be determined by the laws
of the State or Territory in which the court is held").
St. 1910, Mar. 26, No. 107, 61st Cong., p. 263 (amending St. 1907, Feb. 20, § 3 ; importation
of aliens for prostitution ; in such prosecutions husband or wife shall be admissible against
wife or husband).
St. 1911, Mar. 3, c. 231, 61st C, 3d Sess., p. 1087, Judicial Code, § 297 (repeaUng Rev. St.
§§ 1078, 1079; St. 1883, Mar. 3, c. 116; St. 1887, March 3, c. 359, § 8, and consolidating
and reenacting them as Jud. Code, § 186 ; "No person shall be excluded as a witness in the
Court of Claims on account of color [or] because he or she is a party to or interested in the
cause or proceeding ; and any plaintiff or party in interest may be examined as a witness
on the part of the government") ; amended by St. 1912, Feb. 5, c. 28, 62d C, p. 59 (insert-
ing the "or" as above).
Utah: St. 1909, c. 37, p. 34 (amending Comp. L. 1907, § 5014, by adding an exception
for "crimes referred to in § 4224, Comp. L. 1907").
St. 1911, c. 105, p. 149, § 5 (amending the same § 5614, by re-wording the new exception
thus, "or in case of crimes defined in an Act relating to pandering and in an Act making
it a misdemeanor to abandon " the family, both being Acts of 1911).
St. 1909, c. 39, p. 42 (amending similarly Comp. L. 1907, § 3414).
St. 1911, c. 109, p. 180 (amending similarly Comp. L. 1907, § 3414).
St. 1911, c. 62, p. 84, § 5 (bastardy cases; "the mother and defendant shall be admitted
as competent witnesses").
Vermont: St. 1904, Nov. 9, c. 60 ("Husband and wife shall be competent witnesses for
or against each other in all cases civil or criminal, except that neither shall be allowed to
testify against the other as to any statement, conversation, letter, or other communication
made to the other or to another person ; nor shall either be allowed in any case to testify
as to any matter which in the opinion of the Court would lead to a violation of marital con-
fidence").
St. 1908, No. 64, p. 63, § 1 (amending Pub. St. § 1589, by omitting, after "against him,"
the clause "as to facts . . . party") ; § 2 (amending Pub. St. § 1590, by omitting the same
clause at the end) ; § 3 (amending Pub. St. § 1591, by omitting the same clause at the end).
St. 1910, No. 158, p. 151 (banks; "in actions against a bank by a husband to recover
for moneys deposited by his wife in her name or as her money," the wife is competent ;
will the Vermont legislators explain why the wife is so pecuHarly less liable to falsify in
actions against banks? ' Why not admit her in all cases?).
St. 1910, No. 85, p. 92 (amending Pub. St. § 1589, by adding, "provided however that
where such deceased or insane party, while living or before becoming insane, made entries
in a book of accounts or cash bpok relating to the transactions mvolved in such action and
125
§ 488 TESTIMONIAL QUALIFICATIONS
[Npte 1 — continued]
showing the receipt or payment of money, in due course of business and before any contro-
versy arose respecting the transactions to which such entries relate," such entries are ad-
missible, "and the adverse party in all such actions may meet the evidence of such entries
by any proper evidence" ; it is pitiful to find that legislators believe that the petty details
of such an amendment have any relation to the revelation of truth ; they are merely rules
of legislative logomachy).
Virginia: St. 1902, Extra, c. 22 (bribery offences; similar to Code 1887, § 3899, supra).
Washington: St. 1907, c. 103, p. 199, § 3 (family-desertions; existing rules "prohibiting
the disclosure of confidential communications between husband and wife shall not apply" ;
"both husband and wife shall be competent witnesses to testify for or against each other,"
to all facts, including marriage and parentage).
St. 1909, c. 249, p. 900, § 38 ("Every person convicted of a crime shall be a competent
witness in any civil or criminal proceeding ; but his conviction may be proved for the pur-
pose of affecting the weigh^t of his testimony" ; "he shall answer any proper question rele-
vant to that inquiry, and the party cross-examining shall not be concluded by his answer
thereto").
West Virginia: St. 1911, c. 22, p. 65, § 3 (pandering; the female shall be competent
"to testify for or against the accused as to any transaction or as to [any?] conversation
with the accused, or by him with another person or persons in her presence," notwith-
standing her marriage to him before or after the offence and whether called during the
marriage relation or afterwards).
St. 1911, c. 23, p. 67, § 2 (pjmping; similar provision).
Wisconsin: St. 1905, c. 131 (offence of abandonment of family; the wife of the defend-
ant "shall be competent to testify for or against him").
St. 1907, c. 197 (amending Stats. § 4069).
St. 1911, c. 576, p. 731 (family-desertion; like Wash. St. 1907,. c. 103; with a proviso
against self-incrimination).
Wyoming: St. 1909, c. 145, p. 191 (amending Stats. 1899, § 3682, Stats. 1887, § 2589,
in unspecified particulars).
§ 492. Mental Derangement ; General Principle.
[Note 3; add:]
1906, State v. Simes, 12 Ida. 310, 85 Pac. 914.
1911, McKinstry v. Tuscaloosa, 172 Ala. 344, 54 So. 629 (Worthington v. Mercer followed)
1907, Cuesta v. Goldsmith, 1 Ga. App. 48, 57 S. E. 983 (following Pittsburg & W. R. Co.
V. Thompson).
1912, People v. Enright, 256 111. 221, 99 N. E. 936.
1909, State v. Berberick, 38 Mont. 423, 100 Pac. 209 (applied to a confession).
§ 495. Capacity of Communication.
[Note 1; add:]
1909, State v. Berberick, 38 Mont. 423, 100 Pac. 209 (insanity at the time of a confession).
State V. Church, 199 Mo. 605. 98 S. W. 16 (confession admitted, subject to impeachment
by evidence of insanity).
§ 496. Trial Court's Discretion.
[Note 1; add:]
1912, People v. Harrison, 18 Cal. App. 288, 123 Pac. 200.
1906, State v. Crouch, 130 la. 478, 107 N. W. 173.
1909, Covington ii. O'Meara, 133 Ky. 762, 119 S. W. 187.
126
QUALIFICATIONS; MENTAL CAPACITY §500
§ 497. Methods of Ascertainment of Capacity.
INotel; add:]
1909, Covington v. O'Meara, 133 Ky. 762, 119 S. W. 187.
1908, Williams v. State, 52 Tex. Cr. 430, 107 S. W. 825.
[Note 2 ; add in accord :]
1909, Covington v. O'Meara, 133 Ky. 762, 119 S. W. 187 (judgment of lunacy four years-
before).
[NoUS; add:]
It would seem that it is not the judge's duty to examine, if he does not choose to ; so that if
the opponent himself declines to examine on voir dire, the judge's refusal to do so is proper
in his discretion ; contra : 1906, State v. Simes, 12 Ida. 310, 85 Pac. 914.
[Note 6; add:]
Accord: 1912, People v. Enright, 256 111. 221, 99 N. E. 936.
1911, State V. Whitsett, 232 Mo. 511, 134 S. W. 555 (citing the above text).
Contra: 1908, WiUiams v. State, 52 Tex. Cr. 430, 107 S. W. 825. It is strange that these
contra Courts did not see how preposterous it is to bind the jury by a legal definition of admis-
sibility. The jury's only inquiry ought to be the general credibility of the witness, which
is distinct {ante, § 12) from admissibility. Times seem degenerate when such fundamentals
can be ignored.
§ 498. Deaf-and-Dumb Persons.
[Note 2; add:]
1906, State v. Simes, 12 Ida. 310, 85 Pac. 914 (rape of a female mentally incapable of con-
sent ; the woman held not thereby also incompetent as a witness).
1906, State v. Crouch, 130 la. 478, 107 N. W. 173.
[Note 4 ; add :]
1907, State v. Smith, 203 Mo. 695, 102 S. W. 526 (rape on a deaf-and-dumb woman).
§ 499. Intoxication.
[Notei; add:]
1904, State v. Sejours, 113 La. 676, 37 So. 599 (intoxication at the time of the shooting, held
not to disqualify on the facts).
[Note 5, col. 1; add:]
1904, R. V. Lai Ping, 11 Br. C. 102 (confession while depressed by opium, admitted).
1914^ Lindsay v. State, — Fla. — , 63 So. 832.
1906, State v. Hogan, 117 La. 863, 42 So. 352.
1914, McCleary v. State, — Md. — , 89 Atl. 1100 ("greater or less absence of mental fac-
ulty, as the result of intoxication" held not to exclude).
1900; State v. Church, 199 Mo. 605, 98 S. W. 16 (insanity).
1902, State v. Haworth, 24 Utah 398, 68 Pac. 155 (intoxication).
§ 500. Disease, etc.
[NoU 2,1 4:; add:]
1891, State v. Morgan, 35 W. Va. 260, 13 S. E. 385 (soliloquy at night while on a couch,
admitted ; semble, admissible even though made while asleep).
127
§500 TESTIMONIAL QUALIFICATIONS
[Note 2 — continued]
The following case raises an interesting question :
1913, State v. Strong, 83 N. J. L. 177, 83 Atl. 506 (confession to a clairvoyant, held inad-
missible, semble).
§ 505. Infancy; General Principle.
1909, Chavigny v. Hava, 125 La. 710, 51 So. 696 (boy of 10 years, admitted).
1913, New Orleans & N. E. R. Co. v. Mobly, — Miss. — . 63 So. 665 (child of 6, admitted).
1909, Evers v. State, 84 Nebr. 708, 121 N. W. 1005.
§ 506. Infancy; Capacity, etc.
[Note 4; add:]
1907, Clinton v. State, 53 Fla. 98, 43 So. 312.
1905, Bright v. Com., 120 Ky. 298, 86 S. W. 527.
§ 507. Standard of Intelligence ; Trial Court's Discretion.
[Note 1 ; add :]
1906, Birmingham R. L. & P. Co. v. Wise, 149 Ala. 492, 42 So. 821.
1910, Crosby v. State, 93 Ark. 156, 124 S. W. 781.
1904, People v. Stouter, 142 Cal. 146, 75 Pac. 780.
1904, Shannon v. Swanson, 208 111. 52, 69 N. E. 869.
1912, Tyrrel v. State, 177 Ind. 14, 97 N. E. 14 (child of 8).
1907, State v. Meyer, 135 la. 507, 113 N. W. 322.
1910, Merchant v. Com., — Ky. — , 130 S. W: 793 (child of 8, admitted).
1913, New Orleans & N. E. R. Co. v. Mobly, — Miss. — , 63 So. 665.
1908, State v. Brown, 209 Mo. 413, 107 S. W. 1068. 1909, State v. Headley, 224 Mo. 177,
123 S. W. 577. 1913, State v. Anderson, 252 Mo. 83, 158 S. W. 817 (Why should this
Court pay any more attention to this simple, settled point ? It has burdened the books
with five needless rulings in seven years).
1905, State v. ToUa, 72 N. J. L. 515, 62 Atl. 675.
1914, State v. Pitt, — N. C. — , 80 S. E. 1060.
1907, State v. Werner, 16 N. D. 83, 112 N. W. 60.
1914, State v. Jensen, — Or. — , 140 Pac. 740 (rape ; child of 4, admitted).
1905, Com. V. Furman, 211 Pa. 549, 60 Atl. 1089 (good opinion).
1913, Piepke v. Philadelphia & R. Co., 242 Pa. 321, 89 Atl. 124.
1905, Freasier v. State, — Tex. Pr. — , 84 S. W. 360.
1911, Johnson v. Com., Ill Va. 877, 69 So. 1104.
1909, State v. Myrberg, 56 Wash. 384, 105 Pac. 622. 1911, Kalberg v. Bon Marche, 64
Wash. 452, 117 Pac. 227.
[Note 2; add:]
1913, Penny v. State, — Ark. — , 159 S. W. 1127 (child of 9, held qualified).
1904, Sokel V. People, 212 111. 238, 72 N. E. 382 (a girl of nine, admitted). 1911 People v.
Lewis, 252 111. 281, 96 N. E. 1005,(child of 6, admitted).
1907, State v. Meyer, 135 la. 507, 113 N. W. 322 (child of 6, admitted).
1905, State v. ToUa, 72 N. J. L. 515, 62 Atl. 675 (child of six years, admitted).
1907, State v. Werner, 16 N. D. 83, 112 N. W. 60 (child of 8 years, admitted).
1913, Piepke v. Philadelphia & R. Co., 242 Pa. 321) 89 Atl. 124 (boy of 7, held improperly
rejedted).
128
QUALIFICATIONS; MENTAL CAPACITY §518
§ 508. Capacity Presumed.
[Note 2; add:]
1905, Clark v. Finnegan, 127 la. 644, 103 N. W. 970 (child of seven, admitted).
[Note 3; add:]
1904, Shannon v. Swanson, 208 111. 52, 69 N. E. 869 (at fourteen there is a presumption of
competency; below that age, there is to be an inquiry into his qualifications). •
§ 509. Policy of Abolishing Disqualification by Infancy.
[Note 1; add:]
This advanced step/ has in effect been taken by the modern English statutes of 1889
and 1904, cited post, § 1828.
§ 516. Alienage, Race, or Color.
[Note 1, 1. 1; add:]
"NvUum valere fcedus cum hostibus rdigionis." Different phases are seen in the following
works : Hallam, Middle Ages, 11. 103 ; Laurent, Histoire du droit des gens, ed. 1865, X,
439.
[Note 5 ; add :]
Circa 1300, Waterford Custumal, c. 8 ("No foreigner shall be a witness against a citizen,
unless he has no other witness, or unless he has come in a ship, etc."), in Bateson's Borough
Customs, I, 168, Selden Society Pub., vol. XVIII, 1904).
The early discrimination against Jews (Riggs' Select Pleas, Starrs, and Records of the
Jewish Exchequer, p. 1 ; Selden Soc, vol. XV, 1902) was another phase of the same attitude.
[Note 7; add:]
U. S. St. 1906, June 29, § 4, c. 3592, Stat. L. vol. 34, p. 598 (naturalization laws revised ;
beside the applicant's oath is required "the testimony of at least two witnesses, citizens of
the U. S., as to the facts of residence, moral character, and attachment to the principles of
the Constitution") ; ii6. § 10 (in case of less than five years' residence in the State where peti-
tion is filed, etc., etc., the residence there may be established by two witnesses, and the
residence elsewhere by "two or more witnesses who are citizens of the U. S.," upon notice
to the Bureau, etc., and the U. S. attorney for the district of their residence).
[Note 12; add:]
U. S. Rev. St. 1878, § 1078, was repealed and replaced by St. 1911, Mar. 3, c. 231, Judicial
Code, § 186.
[Note 15, 1. 6; insert:]
1909, Pumphrey v. State, 84 Nebr. 636, 122 N. W. 19 (a Japanese presumed competent under
this statute).
§ 518. Religion.
[Note 5;^ add:]
There was a discrimination against Jews in Norman times ; but this was probably due
to their alien character (ante), 516, n. 5.
129
§ 519 TESTIMONIAL QUALIFICATIONS
§519. Infamy; History.
[Note 2; add:]
The earlier class-distinctions seem to have had some such disqualification attached;
weavers and fullers, in the 1200s, could not bear witness against a free man : Beverly Town
Documents, ed. Leach, Introd. p. xlv, text p. 134 (1209 A.D., Selden Society Pub., vol. XIV,
1900).
§ 520. Kind of Crime that Disqualifies.
[Note 6, at the end; add:]
1910, Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561 (murder-conviction disqualifies ; here
on a case arising from Indian Territory).
1908, U. S. V. Sims, C. C. N. D. Ala., 161 Fed. 1009 (embezzlement; careful opinion by
Hundley, J.).
1912, Keliher v. U. S., C. C. A., 193 Fed. 8 (conviction of a misdemeanor subjecting to
imprisonment for more than a year, held not to disqualify).
Disqualifying crimes :
1913, Maxey v. U. S., 8th C. C. A., 207 Fed. 327 (conviction for fraudulent use of the mails
held to disqualify).
§521. Infamy; Judgment, not Guilt, Disqualifies.
[Note 2, col. 2, \. 17; add:]
1907, Rice i). State, 50 Tex. Cr. 648, 100 S. W. 771 (verdict without sentence does not dis-
qualify).
§ 522. Infamy; Conviction in Another Jurisdiction.
[Note 3 ; add, under Accord :]
1905, Robinson v. State, 50 Fla. 115, 39 So. 465 (conviction not shown to be in a court of the
State, held not to disquaUfy under Rev. St. 1892, § 1096).
1908, In re Ebbs, 150 N. C. 44, 63 S. E. 190 (State v. Candler discussed, in a proceeding for
disbarment ; point not decided).
1909, Samuels v. State, 110 Va. 901, 66 S. E. 222 (conviction of perjury in a Federal court
sitting in Virginia does not disqualify in a Virginia court). 1910, Kain v. Angle, 111 Va. 415,
69 S. E. 355 (same).
§ 523. Disqualification Removed by Pardon, etc.
[Note 2; add:]
1913, Roberson v. Woodfork, 155 Ky. 206, 159 S. W. 793.
1834, Perkins v. Stevens, 24 Pick. 277 (a general pardon restores competency).
1904, Miller v. State, 46 Tex. Cr. 59, 79 S. W. 567 (here a question as to the application of a
pardon to a different conviction).
1913, Thompson v. U. S., 9th C. C. A., 202 Fed. 401 (perjury).
1853, Anglea v. Com., 10 Gratt. 696 (except for perjury, under the Virginia Code).
[Note 5 ; add :]
1909, State v. Blount, 124 La. 202, 50 So. 12.
1906, Quillin v. Com., 105 Va. 874, 54 S. E. 337 (confinement for sixty days in a, jail on a
capias pro fine is not a satisfaction of a punishment of fine). '
1910, Davidson v. Watts, 111 Va. 394, 69 S. E. 328.
130
QUALIFICATIONS; INFAMY §529
§ 524. Statutory Changes.
[fea:*, p. 654, last line ; add:]
Where a statute removing a disqualification, e. g. of an accused, and a statute
defining a disqualification by infamy, apply to the same person, the former
statute should of course by implication prevail.'"
1° 1911, Turner s. State, 100 Ark. 199, 139 S. W. 1124 (a defendant in a criminal trial is.
not disqualified by prior conviction of crime).
[Note 1 ; add :]
1904, Illinois C. R. Co. v. McManus' Adm'r, 118 Ky. 780, 82 S. W. 399 (conviction for
burglary does not exclude).
1904, Martin v. Terr., 14 Okl. 593, 78 Pac. 88 (convict, admissible).
;905, Wells V. Terr., 15 Okl. 195, 81 Pac. 425 (similar).
§ 526. Accomplice.
[Note 1 ; add, at the end :]
It is surprising to see the point raised nowadays :
1905, Miller v. State, 165 Ind. 566, 76 N. E. 245 (receiving stolen goods ; the thief may prove
the theft).
§ 527. Witness retracting Former Perjured Testimony.
[Note 2, par. 1 ; add:]
Accord : 1906, Trafton v. Osgood, 74 N. H. 98, 65 Atl. 397 (a witness admitting prior perjury
on the same point is not excluded).
1906, Chandler v. State, 124 Ga. 821, 53 S. E. 91 (retracting a self-confessed perjury).
1887, U. S. II. Thompson, 31 Fed. 331 (subornation of perjury; disapproving People v.
Evans, N. Y., infra).
1905, State v. Pearson, 37 Wash. 405, 79 Pac. 985 (witness admitting perjury at a former
trial of himself, held competent).
Contra: 1869, People v. Evans, 40 N. Y. 1, 6 (subornation, following Dunlop v. Patterson ;
supra, and ignoring Dunn v. People).
§ 528. Attesting Witness Contradicting his Attestation.
[Note 1 ; under Accord, add:]
Goodisson v. Goodisson, Ir. R. 1913, I, 31, 218 (witness to a will; testimony not to be
rejected because contradictory of his attestation and a prior affidavit).
1905, Theriot's Succession, 114 La. 611, 38 So. 488 (notary and attesting witnesses allowed
to testify to non-observance of formaUties).
§ 529. Invalidating One's Own Instrument.
[NoU9; add:]
1909, Merck v. Merck, 83 S. C. 329, 65 S. E. 347 (a grantee who afterwards conveys may in
a suit between his grantee and a third person testify that the deed to himself was never
duly executed ; the contrary statement in Garrett v. Weinberg, 54 S. C. 127, 31 S. E. 341,
distinguished).
131
§ 530 TESTIMONIAL QUALIFICATIONS
§ 530. Contradicting One's Own Official Certificate.
[Note 1; add:]
1895, Shapleigh v. Hull, 21 Colo. 419, 41 Pac. 1108 (notary public not allowed to impeach
his certificate of acknowledgment).
1904, First Nat'l Bank v. Glenn, 10 Ida. 224, 77 Pac. 623 (acknowledgment of a mortgage
by an Indian married woman ; the notary not allowed to deny the taking of the acknowl-
edgment ; placed on the ground of vested rights).
1858, Stone v. Montgomery, 35 Miss. 83 (an offer certifying to a married woman's acknowl-
edgment cannot be admitted to impeach the correctness of the certificate).
1890, Hockman v. McClanahan, 87 Va. 33, 39, 12 S. E. 230 (approving Hawkins v. Forsyth,
supra).
1905, Winn v. Itzel, 125 Wis. 19, 103 N. W. 220 (notary allowed to impeach his certificate
of acknowledgment of an aged woman's deed).
§ 555. General Theory of Experiential Capacity.
[Text, p. 668, par. (2), at the end ; add a new note 2 :]
^ This principle is expressly approved by Powers, J., in Conley v. Portland G. L. Co.,
99 Me. 67, 58 Atl. 61 (1904).
§ 556. Different Kinds of Expert Capacity.
[Text, p. 670, 1. 2 ; adds, note 1 :]
Approved in the following cases :
1907, Crosby v. Wells, 73 N. J. L. 790, 67 Atl. 295 (an oil-driller).
1909, Crosby v. Portland R. Co., 53 Or. 496, 100 Pac. 300.
§ 560. Qualifications must be Expressly Shown.
[Note 1,1. 3; add:]
and the cases cited post, § 654, n. 1 (knowledge qualifications).
§ 561. Discretion of the Trial Court.
[Notel; add:]
1905, Braham v. State, 143 Ala. 28, 38 So. 919. 1910, Stewart v. Sloss-Sheffield S. & I. Co.,
170 Ala. 544, 54 So. 48.
1905, Hamilton v. U. S., 26 D. C. App. 382, 391 (medical men).
1904, Schley v. State, 48 Fla. 53, 37 So. 518.
1904, Conley v. Portland G. L. Co., 99 Me. 57, 58 Atl. 61.
1909, State v. Flanigan, 111 Md. 481, 74 Atl. 818.
1904, Muskeget Island Club v. Nantucket, 185 Mass. 303, 70 N. E. 61 (conclusive, unless
"erroneous in law"). 1910, Martin v. Boston & N. St. R. Co., 205 Mass. 16, 91 N. E. 159
(but where the qualifying facts are undisputed, the upper Court may review) . 1909, Carroll
V. Boston Elev. R. Co., 200 Mass. 527, 86 N. E. 793. 1912, Com. v. Spencer, 212 Mass. 438
99 N. E. 266 (physician).
1905, Corse & Co. v. Minnesota Grain Co., 94 Minn. 331, 102 N. W. 728.
1905, Paterson v. Chicago, M. & St. P. R. Co., 95 Minn. 57, 103 N. W. 621.
1904, State v. Arthur, 70 N. J. L. 425, 57 Atl. 156.
1904, Bums v. Del. & A. T. & T. Co., 70 N. J. L. 745, 59 Atl. 220.
1906, State v. Monich, 74 N. J. L. 522, 64 Atl. 1016 ("if there be any legal evidence to sup-
port the finding" of admissibility, this suffices).
1913, Atchison T. & S. F. R. Co. v. Baker, 37 Old. 48, 130 Pac. 577 (emergency breaks).
132
QUALIFICATIONS; EXPERIENCE §562
[Note 1 — continued]
1906, State v. White, 48 Or. 416, 87 Pac. 137. 1909, Crosby v. Portland R. Co., 53 Or.
496, 100 Pac. 300.
1912, Eastman v. Dunn, 34 R. I. 416, 83 Atl. 1057 (value witness).
1905, Borneman v. Chicago, St. P. M. & O. R. Co., 19 S. D. 459, 104 N. W. 208.
1908, Inland & S. C. Co. v. Tolson, 139 U. S. 551, 559, 11 Sup. 653.
1891, Chateaugay O. & I. Co. v. Blake, 144 id. 476, 484, 12 Sup. 731. 1913, Matheson v.
U. S., 227 U. S. 540, 33 Sup. 355 (trial judge's discretion).
1905, Virginia I. C. & C. Co. v. Tomhnson, 104 Va. 249, 51 S. E. 362. 1909, Hot Springs
L. M. Co. V. Revercomb, 110 Va. 240, 65 S. E. 557.
1913, Bogart v. Pitchless L. Co., 72 Wash. 417, 130 Pac. 490 (lumbering).
§ 562, Sundry Principles; Securing Unbiassed Experts.
[Text, par. (2), 1. 2 ; after "experience," add a new note la :]
^° Cases cited post, § 655 ; which include also rulings on experiential qualifications.
Of course, the vyitness is not to decide his own qualifications : 1907, Glover v. State, 129 Ga.
717, 59 S. E. 816 (even where, as in this extraordinary case, he disclaims being an expert).
[Text, p. 677, 1. 2 ; aM a, new par. (4) :]
(4) In the Admiralty practice, where skilled assessors are summoned to form
a part of the tribunal, special expert nautical witnesses are not permitted to
be used by the parties.^
" 1842, The Gazelle, 1 W. Rob. 471.
1907, Bryce v. Canadian Pacific R. Co., 13 N. Br. 96, 108 (citing other cases).
[Note 1, at the end ; add:]
The first attempt at legislative reform in this subject has now been made in Michigan, by
St. 1905, No. 175 (Sect. 1 : No expert shall receive a sum "in excess of the ordinary witness
fees," unless by court order; and to pay or receive such a fee is made a misdemeanor;
Sect. 2 : "No more than three experts shall be allowed to testify on either side as to the same
issue in any given case, except in criminal prosecutions for homicide," unless the trial Court
permits additional ones ; Sect. 3 : "In criminal cases for homicide where the issues involve
expert knowledge or opinion, the Court shall appoint one or more suitable disinterested
persons, not exceeding three, to investigate such issues and testify to the trial" ; the com-
pensation is to be paid by the county, "and the fact that such witness or witnesses have been
so appointed shall be made known to the jury" ; but "this provision shall not preclude either
prosecution or defence from using other expert witnesses at the trial " ; Sect. 4 : "This act
shall not be applicable to witnesses testifying to the estabhshed facts or deductions of science,
nor to any other specific facts, but only to witnesses testifying to matters of opinion").
But this statute was held unconstitutional in People v. Dickerson, 164 Mich. 148, 129 N. W.
189. To refute the reasoning of this extraordinary opinion would here take too much
space. Moreover, it is doubtful whether reasoning would avail with any one who is dis-
posed to balk at the constitutionality of such a statute.
See also Va. St. 1914, c. 313 (amending Code § 1682; insanity experts.)
The Medico-Legal Society, of New York, at its March and May meetings (1907) , discussed
the subject, and the March, June, and September numbers (1907) of the Society's Journal
published contributions. A Committee was appointed, under the chairmanship of Chief
Justice Emery, of the Maine Supreme Court, to prepare a memorial to the Legislatures of
the various States. The following bill was drawn under his advice, and has been introduced
into the Legislature of Maine : "Section 1. In any case, civil or criminal, in the supreme
judicial court, or any superior court, when it appears that questions may ai'ise therein upon
which expert or opinion evidence would be admissible, the court, or any justice thereof in
133
§ 562 TESTIMONIAL QUALIFICATIONS
[Note 1 — '■ contimied]
vacation, may appoint as examiner one or more disinterested persons qualified as experts
upon the questions. The examiner, at the request of either party, or of the court or justice
appointing him, shall make such examination and study of the subject matter of the ques-
tions as he deems necessary for a full understanding thereof, and such further reasonable
pertinent examination as either party shall request. Reasonable notice shall be given each
party of physical examination of persons, things and places, and each party may be repre-
sented at such examinations. Section 2. At the trial of the case either party or the court
may call the examiner as a witness, and if so called he shall be subject to examination and
cross-examination as other witnesses. For his time and expenses incurred in the examina-
tion and in attending court as a witness he shall be allowed by the court a reasonable sum,
to be paid from the county treasury as a part of the court expenses. The court may limit
the witnesses to be examined as experts to such number on each side as it shall adjudge
suiBcient for an understanding of the contention of the parties on the question. Section 3.
When upon the trial of any case in either of said courts questions arise upon which expert
or opinion evidence is offered, the court may continue the case and appoint an examiner for
such questions as provided in Section 1. Section 4. In all cases in said courts where a
view hf the jury may be allowed, the court, instead thereof, may appoint one or more dis-
interested persons to make the desired inspection in the manner and under the same rules
and restrictions as in the case of a view by the jury. The viewer thus appointed may be
called as a witness by either party or by the court, and shall be subject to examination and
cross-examination like other witnesses. He shall be allowed by the court a reasonable sum
for time and expenses incurred, to be paid by the party asking for the view and taxed in his
costs, or to be paid by the county as a part of the court expenses, at the discretion of the
court."
The literature of this topic has now become extensive, and is partly collected by the
author in the following list (published in Bulletin No. 5, vol. XV, Northwestern University,
"List of References on Problems of Contemporary Legislation") :
/. F. Stephen, "Expert Testimony" (Juridical Society Papers, II, 236).
Willard Bartlett, "Medical Expert Evidence: The Obstacles to Radical Change in the
Present System" (American L. Rev., XXXIV, I).
G. A. Endlich, "Proposed Changes in the Law of Expert Testimony" (Amer. L. Rev.,
XXXII, 851).
W. L. Foster, "Expert Testimony — Prevalent Complaints and Proposed Remedies"
(Harvard L. R., XI, 169).
Learned Hand, "Historical and Practical Considerations Regarding Expert Testimony"
(Harv. L. R., XV, 40).
L. A. Emery, "Medical Expert Evidence" (Amer. Law Rev., XXXIX, 481).
S. S. Cohen, "The Proper Scope of Scientific (So-Called Expert) Testimony in Trials In-
volving Pharmacologic Questions" (id., XXXIX, 187).
Various Articles in the Medico-Legal Society's Journal (New York).
H. M. Somermlle, and others (American Lawyer, XV, 309).
Massachusetts Legislature, 1908, Hearing before the Judiciary Committee on Bill of Mas-
sachusetts Medical Society.
Michigan Bar Association, Report of Committee (Proceedings of 1905 ; Judge W. )B.
Perkins, chairman; containing a bibUography, including articles in medical jour-
nals).
Maryland Bar Association, Report of Committee (Proceedings of 1909 ; containing a
summary of arguments, with the text of the laws and proposed bills to date ; C. W. Sams,
Chairman of Committee).
Persifor Frazer, "Expert Testimony: Its Abuses and Uses" (American Law Register,
1902, XLI N. S., L O. S., 87).
Lee M. Friedman, "Expert Testimony: Its Abuses and Reformation" (Yale L. J.,
XIX, 247).
134
§562 QUALIFICATIONS; EXPERIENCE
[Note 1 — continued]
"Expert Testimony — A Discussion" (Amer. L. Rev., L, 346).
Various Articles in the Journal of Criminal Law and Criminology (Northwestern Uni-
versity Building, Chicago), Vol. I and later.
Edward J. McDermoU, "Expert Testimony" (Amer. L. Rev., XLVII, 35).
American Institute of Criminal Law and Criminology, Committee on Insanity and Crime,
Edwin R. Keedy, Chairman, Reports of 1913, 1914 (pubUshed in the Journal of the In-
stitute). ♦
Ameri,can Medical Association, Committee on Expert Testimony^ Report of 1914.
Wisconsin Branch of the American Institute of Criminal Law and Criminology, Report
of Committee on Procedure, 3d Ajmual Meeting, 1911 (Journal of Criminal Law, etc., II,
724).
The report of the above Committee (Edwin R. Keedy, chairman) of the Institute of
Criminal Law and Criminology was presented and accepted at the annual meeting of
the Institute, held at Washington, D. C, in October, 1914, and its draft bill promises
at last to furnish a platform on which all can agree; and there is now substantial
hope of legislation to remedy the present unsatisfactory conditions; see the Com-
mittee's report printed in the Journal of the Institute for January, 1915, and an
editorial in the Illinois Law Review for December, 1914 (vol. IX). The Committee's
bill will be laid before corresponding committees of the American Bar Association,
American Medical Association, American Neurological Society, and National Conference
of Commissioners on Uniform State Laws, for further indorsement. The bill is as follows :
" Section 1. Where the existence of mental disease or derangement on the partof any
person becomes an issue in the trial of a case, the judge of the trial court may summon
one or more disinterested qualified experts, not exceeding three, to testify at the trial.
In case the judge shall issue the summons before the trial is begun, he shall notify coun-
sel for both parties of the witnesses so siunmoned. Upon the trial of the case, the
witnesses summoned by the court may be cross-examined by counsel for both parties in
the case. Such summoning of witnesses by the court shall not preclude either party
from using other expert witnesses at the trial.
" Section 2. In criminal cases, no testimony regarding the mental condition of the
accused shall be received from witnesses summoned by the aceused until the expert wit-
nesses summoned by the prosecution have been given an opportunity to examine the
accused.
" Section 3. Whenever in the trial of a criminal case the existence of mental disease
on the part of the accused, either at the time of the trial or at the time of the commis-
sion of the alleged wrongful act, becomes an issue in the case, the judge of the court
before which the accused is to be tried or is being tried shall commit the accused to the
State Hospital for the Insane, to be detained there for purposes of observation until fur-
ther order of coiu^. The court shall direct the superintendent of the hospital to permit
all the expert witnesses summoned in the case to have free access to the accused for
purposes of observation. The court may also direct the chief physician of the hospi-
tal to prepare a report regarding the mental condition of the accused. This report may
be introduced in evidence at the trial under the oath of said chief physician, who may be
cross-examined regarding the report by counsel for both sides.
" Section 4. Each expert witness may prepare a written report upon the mental con-
dition of the person in question, and such report may be read by the witness at the trial.
If the witness presenting the report was called by one of the opposing parties, he may
be cross-examined regarding his report by counsel for the other party. If the witness
was summoned by the court, he may be cross-examined regarding his report by counsel
for both parties.
" Section 5. Where expert witnesses have examined the person whose mental condi-
tion is an element in the case, they may consult with or without the direction of the
court, and may prepare a joint report to be introduced at the trial."
135
§564 TESTIMONIAL QUALIFICATIONS
§ 564. Foreign Law.
[NoteZ; add:]
1912, The King v. Bleiler, 4 Alta. 321, 1 D. L. R. 878 (Wisconsin clergyman, acting there for
seven years, admitted to testify to Wisconsin marriage law ; following Sussex Peerage Case).
1911, R. ». Naoum, 24 Ont. L. R. 306 (bigamy ; marriage in Macedonia ; one who had stud-
ied in a Greek school and Servian college (ecclesiastic?) held not sufiScient).
§ 568. Medical and Chemical Matters; Lay Witness.
[Note 1 ; add :]
Laymen held admissible : 1906, Green v. State, 125 Ga. 742, 54 S. E. 724 (smell of carbolic acid).
1904, Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28 (that the plaintiff was "in a
nervous condition").
1907, Cleveland, C. C. & St. L. R. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025 (corporal
injury; sundry questions allowed).
1908, Federal Betterment Co. v. Reeves, 77 Kan. Ill, 93 Pac. 627 (a person's appearance as
to health and strength, before and after injuries, layman allowed).
1904, State v. Lyons, 113 La. 959, 37 So. 890 (coroner's clerk allowed to identify the organs
struck by the bullet).
1906, Krapp v. Metrop. L. Ins. Co., 143 Mich. 369, 106 N. W. 1107 (whether certain persons
had died of consumption).
1912, Norris v. St. Louis I. M. & S. R. Co., — Mo. — , 144 S. W. 783 (appearance as to
health, allowed).
1907, Souchek ». Karr, 78 Nebr. 488, 111 N. W. 150 (a professional nurse, as to the develop-
ment of a child at birth, etc. ; allowed).
1907, State v. Megorden, 49 Or. 259, 88 Pac. 306 (effect of a blow).
1909, Crosby v. Portland R. Co., 53 Or. 496, 100 Pac. 300 (thsit the plaintiff's apparent
health and physical condition had changed since the accident, allowed).
1906, Semet-Solway Co. v. Wilcox, 143 Fed. 839, C. C. A. (plaintiff's ability to work, as
affected by his health).
1906, Davis v. Oregon S. L. R. Co., 31 Utah 307, 88 Pac. 2 (ability to work, etc.).
Laymen held inadmissible: 1910, Clemmons v. State, 167 Ala. 20, 52 So. 467 (time of blood-
coagulation after death; layman excluded). 1906, State v. Nowells, — la. — , 109 N. W.
1016 (whether a dying declarant was "delirious," excluded, but whether he was "wild" or
"incoherent," allowable ; this is indeed a valuable morsel of quibbling, — a veritable en-
sample of Carlyle's "owl-eyed Pedantry").
§ 569. Special Medical Experience Necessary.
[Note 1 ; add tmder admitted:]
1906, Rice v. State, 49 Tex. Cr. 569, 94 S. W. 1024 (medical experts who had had no personal
experience in cases of strychnine ppison, allowed to testify to its symptoms).
1909, Copeland v. State, 58 Fla. 26, 50 So. 621 (strychnine poisoning).
1909, Towaliga Falls P'. Co. v. Sims, 6 Ga. App. 749, 65 S. E. 844 (malarial fever from mos-
quitoes).
1909, State v. Kannuel, 23 S. D. 465, 122 N. W. 420 (arsenic poisoning).
[Note 2, 1. 1; add:]
1911, Odom V. State, 172 Ala. 683, 55 So. 820 ; 174 Ala. 4, 56 So. 913 (an officer in charge of
the transfer of insane persons, held not an expert).
1906, Dolbeer's Estate, 149 Cal. 2^7, 86 Pac. 695 (like Toomes' Estate).
1913, In re Whiting, 110 Me. 232, 85 Atl. 79 (specialist not needed).
1909, United R. & E. Co. v. Corbin, 109 Md. 442, 72 Atl. 606 (specialist not needed).
136
QUALIFICATIONS; EXPERIENCE §571
[Note 3; add:]
1909, Kimic v. San Jose L. G. I. R. Co., 156 Cal. 379, 104 Pac. 986 (graduate nurse, allowed
to testify as to reasons for giving a dose).
1905, Hamilton v. U. S., 26 D. C. App. 382, 391 (medical student excluded).
[Note 4 ; add :]
1905, Macon R. & L. Co. v. Mason, 123 Ga. 773, 51 S. E. 569 (personal injury ; a graduated
but unlicensed osteopath, admitted to testify to the nature of the injury).
[Note 5; add:]
La. : Acts 1894, No. 49, p. 55, § 16 (no practitioner of medicine who has not obtained a cer-
tificate from the State Board of Medical Examiners shall "be allowed to testify as a medi-
cal or siu-gical expert in any court of this State").
1907, State v. Howard, 120 La. 311, 45 So. 260 (statute applied to exclude a witness to bullet-
wounds).
Wis. : 1907, Hocking v. Windsor S. Co.,. 131 Wis. 532, 111 N. W. 685 (St. 1903, c. 426 held
not applicable to a physician not testifying as an expert) ; St. 1903, c. 426, p. 689 (like
Stats. 1898, § 1436, but extended to testimony "in a professional capacity as a physician or
surgeon or insanity expert," and narrowed so that it shall not prevent a Court from receiving
the testimony of any person in a criminal action).
1912, State v. Law, 150 Wis. 313, 136 N. W. 803, 137 N. W. 457 (the statute does not apply
to exclude testimony on topics of bacteriology etc. by unlicensed professors in a medical
school).
§ 570. Handwriting and Paper Money.
[Note 1, 1. 8, before "where, however," insert:]
In Com. V. Borasky, 214 Mass. 313, 101 N. E. 377 (1913) an illiterate was allowed to identify
checks by the picture on them.
[Note 1, at the end; add:]
Compare the cases cited post, § 2012.
[Note 5; add:] '
1913, Cardwell v. Breckenridge, Ont. S. C, 11 D. L. R. 461 (St. 1909, 1 Geo. V, c. 41, now
Rev. St. 1914, c. 165, §§3, 25, held not to exclude a surveyor other than an Ontario sur-
veyor).
[Note 6; add:]
1905, Savage v. Bowen, 103 Va. 540, 49 S. E. 668 (bank-officers, and a court-clerk, admitted
to testify to the sameness of ink and the relative age of writings).
On the above points, compare the cases cited post, § 2024.
§^571. Miscellaneous Instances (Speed of a Train, etc.).
[NoU2; add:]
1906, Colorado & S. R. Co. v. Webb, 36 Colo.' 224, 85 Pac. 683.
1903, Metropolitan R. Co. v. Blick, 92 D. C. App. 194, 213.
1904, Cronk v. Wabash R. Co., 123 la. 349, 98 N. W. 884. 1904, Gregory v. Wasbash R. Co.
126 la. 230, 101 N. W. 761. 1906, Line v. Grand Rapids & I. R. Co., — la. — , 106 N. W.
719. 1911, Sayne v. Waterloo C. F. &. N. R. Co., 153 la. 445, 133 N. W. 781.
1905, Atchison, T. & S. F. R. Co. v. HoUoway, 71 Kan. 1, 80 Pac. 31. 1909, Johnson v.
Chicago R. I. & P. R. Co., 80 Kan. 456, 103 Pac. 90.
137
§ 571 TESTIMONIAL QUALIFICATIONS
[Note 2 — continued]
1906, Garran v. Michigan C. R. Co., 144 Mich. 26, 107 N. W. 284.
1906, Stotler v. Chicago & A. R. Co., 200 Mo. 107, 98 S. W. 509 (reviewing the cases).
1903, Omaha St. R. Co. v. Larson, 70 Nebr. 591, 97 N. W. 824.
1910, Sherman v. Southern Pacific Co., 33 Nev. 385, 111 Pac. 416.
1911, Dugam v. Arthurs, 230 Pa. 299, 79 Atl. 626.
1905, Borneman v. Chicago St. P. M. & O. R. Co., 19 S. D. 459, 104 N. W. 208 ("any person
may become proficient").
1906, Porter v. Buckley, 147 Fed. 140, C. C. A. (speed of an automobile).
[Note 5; add:] ,
1906, Halliday M. Co. v. Louisiana & N. W. R. Co., 80 Ark. 536, 98 S. W. 374 (raihoad rates).
1904, Conley v. Portland G. L. Co., 58 Me. 61, 58 Atl. 61 (water-gas).
1903, U. S. V. Hung Chang, 126 Fed. 400, — D. C. — (whether a person was of Chinese race).
1909, Harris v. Consolidation Coal Co., Ill Md. 209, 73 Atl. 805 (defect in mine-pipes).
§ 575. Interest- Disqualification; History.
[Note 28; add:]
Further details are given in Bateson's "Borough Customs," vol. II, Introd. pp. 29-32
(Selden Society Pub., XXI, 1906).
For some references upon the later history of other forms of the party's decisory oath, see
post, § 1815, n. 2.
In the Boston Globe of Aug. 21, 1907, is noted a pending lawsuit in Lynn, Mass., the
settlement of which was, by consent, to be left to the defendant's decisory oath, taken
according to the Jewish law before a rabbi.
§ 576. Interest- Disqualification.
[Note 11; add:]
Distinguish, however, the rule for a valid attestation by a credible witness (post, §§ 582, 1292).
§ 578. Survivor's Disqualification.
[Text, p. 709, 1. 3 from above; after "adopted in," insert:]
Illinois, Oregon.
[Text, p. 768, 1. 3 from below, after "mere words" ; add a footnote la :]
'° Approved in the following opinion :
1907, Omlie v. O'Toole, 16 N. D. 126, 112 N. W. 677.
§ 579. Accused in Criminal Cases.
[Note 7; add:]
1912, Lindsay v. State, 138 Ga. 818, 76 S. E. 369 (whether the defendant's counsel may
elicit his evidence by questions is in the trial Court's discretion).
1912, Jones v. State, 12 Ga. App. 133, 76 S. E. 1070 (whether the accused may make a
second statement, after rebuttal evidence by the State, is in the trial Court's discretion).
[Text, p. 710 ; at the end of the quotation from People v. Ty\eT,'add, as note 7o :]
'■» The apprehensions of conservative lawyers, at the time of enacting this reform, as to its
ill consequences upon interests of the innocent accused, may be seen forcibly set forth in an
article on "Testimony of Persons accused of Crime," 1 Amer. Law Rev. 443 (1866) ; and it
138
QUALIFICATIONS; INTEREST §580
[Text, p. 710 — cantmued]
was even argued by some of the obstinate ones that the reform was unconstitutional :
Wm. A. Maury, in 14 Amer. Law Rev. 752 (1880).
[NoU^; add:]
1894, Serjeant Robinson, Bench and Bar, 4th ed., 296.
A rational statement of the American experience under the modern rule will be found in
Mr. (Assistant District Attorney) C. C. Nott's article, "In the District Attorney's Office,"
Atlantic Monthly, 1905, p. 481. The best survey of the question, from the point of view of
experience, is found in Mr. (Assistant District Attorney) Arthur Train's invaluable and
entertaining book, "The Prisoner at the Bar" (1906), pp. 161-164.
[Text, p. 711, at the end of the quotation from Sir J. Stephen, add:]
1908, Hon. E. J. Sherman, Justice of the Superior Court of Massachusetts, in "Recollections
of a Long Life," p. 234 : "James H. Vahey, during the trial [of Charles L. Tucker for murder,
in 1904] entered the judge's lobby, after the adjournment of court. Judges Sherman and
Sheldon, Sheriff John R. Fairbairn and Mr. Vahey, being present, the following conversation
took place :
"Mr. Vahey. 'Judge Sherman, you having had a large experience as attorney general
and as a justice of this court in capital trials, I want to ask your advice, as I have had little
or no experience in such cases and am a good deal embarrassed.'
"Judge Sherman. 'If I can properly advise you, I will.'
"Mr. Vahey. 'Shall I put the prisoner on the witness stand?'
"Judge Sherman. 'I do not think it would be proper for me to answer that question.'
" 'Perhaps I can tell you what the rule and practice is among the best lawyers in such
cases. If the attorney believes his client innocent, put him on the witness stand without
hesitation. If, however, he believes him guilty, never put him on the witness stand. If the
prisoner insists on being a witness and the attorney believes him guilty, the attorney should
say to him : "I advise you not to testify," but as you have more interest in the case than I
have, I shall not interfere.'
'"What do you say, Judge Sheldon?'
"Judge Sheldon — 'I fully concur in what you say about the practice among the best
lawyers in such cases.'
"Mr. Vahey — 'I thank you, gentlemen, for advising me.'
"Some days after, Mr. Vahey again entered the judges' office and said :
"'After our interview the other evening, I told Tucker what you said to me concerning
his being a witness.
"'After talking with him a long time, I told him to think it over carefiilly and then to
decide what to do.
'"Subsequently he told me that he had decided not to be a witness, and thereby he re-
lieved me of a great responsibility, and I did not have to advise him.'
"I did not ask Mr. Vahey if he wanted to ask me about Tucker's wanting to be a witness.
The only conversation I ever had with him on that subject is stated in the above memoran-
dum.".
§ 580. Co-Indictees and Co- Defendants.
[NoteZ; add:]
1906, Barbe v. Terr.,16 Okl. 562, 86 Pac. 61.
Contra: 1912, State v. Case, 61 Or. 265, 122 Pac. 304 (following State v. White).
[Note 4:; add:]
1905, State v. Cobley, 128 la. 114, 103 N. W. 99 (admitted for the State).
1906, State v. Myers, 198 Mo. 225, 94 S. W. 242 (same ; here an accomphce separately
charged and convicted).
139
§580 TESTIMONIAL QUALIFICATIONS
[Note 11 ; add, under Pro:]
1863, R. V. Jerrett, 22 U. C. Q. B. 499, 511. 1906, R. v. Blais, 11 Ont. L. R. 345.
[Note 12; add:]
Accord: 1910, Menefee v. State, 59 Fla. 316, 51 So. 555 (Rev. St. § 2905, Gen. St. § 3975,
excluding approvers, held not applicable to the witness offered). 1905, State v. Knudston,
11 Ida. 524, 83 Pac. 226 (pleading guilty, but not yet discharged from the information).
1907, Simpson v. Com., 126 Ky. 441, 103 S. W. 332.
1909, State v. Shelton, 223 Mo. 118, 122 S. W. 732.
1906, State v. Myers, 198 Mo. 225, 94 S. W. 242 (convicted).
1905, Wells V. Terr., 15 Okl. 195, 81 Pac. 425 (pleading guilty but not sentenced).
1910, State v. Kennedy, 85 S. C. 146, 67 S. E. 152.
1907, Burdett v. State, — Tex. Cr. — , 101 S. W. 988 (after plea of guilty and before sentence) .
1905, Wong Din v. U. S., 135 Fed. 702, 68 C. C. A. 340 (conspiracy; to evade immigration
law).
Contra: 1906, State v. White, 48 Or. 416, 87 Pac. 137.
[Note 13; add:]
Accord: 1855, People v. Labra, 5 Cal. 184.
1862, People v. Newberry, 20 id. 439.
1905, State v. Knudston, 11 Ida. 524, 83 Pac. 226.
La. St. 1902, No. 185 (quoted anU, § 488).
Contra: 1884, State v. Drake, 11 Or. 396, 402, 4 Pac. 1204.
1906, State v. White, 48 Or. 416, 87 Pac. 137 (the trial Court has discretion as to the one
discharged).
1907, Burdett v. State, 51 Tex. Cr. 345, 101 S. W. 988 (for a misdemeanor).
[Note 15; add:]
1909, Macdonnell's Case, 2 Cr. App. 322 (under St. 1898, c. 36, § 1, "a prisoner is a com-
petent, though not a compellable, witness for a co-prisoner jointly indicted with him for the
same offence ")•
There is a peculiar doctrine in Texas as to the right of a defendant to insist on the State's
guaranty of immunity to a co-defendant thus dismissed, in order that the defendant may
call him without the obstacle of his claim of privilege.
1906, Puryear v. State, 50 Tex. Cr. 454, 98 S. W. 258.
r
[NoteVo; add:]
In Louisiana, St. 1904, No. 41 (quoted ante, § 488) now removes all disqualification on the
above grounds.
§ 581. Testifying to One's Own Intent.
[Note 3; add:]
1909, Fanning v. Green, 156 Cal. 279, 104 Pac. 309 (husband's gift to wife; the husband-
plaintiff's testimony to his intent held admissible, the intent being here material in the
substantive law). 1912, Runo v. Williams, 162 Cal. 444, 122 Pac. 1082 (malicious prosecu-
tion ; whether defendant was actuated by malice, etc., allowed).
1906, Boulder & W. R. D. Co. v. Leggett D. & R. Co., 36 Colo. 455, 86 Pac. 101 (by a party,
whether he intended to abandon a water-right, allowed).
1904, Eatman d. State, 48 Fla. 21, 37 So. 576 (embezzlement; defendant allowed to speak
as to his belief in his right to the money).
1906, Haggard s. Glucose S.' R. Co., 132 la. 724, 109 N. W. 475 (to an employee, whether
he relied on a promise to repair, allowed). 1906, Helm v. Anchor F. Ins. Co., 132 la. 177,
140
QUALIFICATIONS; INTEREST §584
[Note 3 — contirmed]
109 N. W. 605 (fraud in insurance, by the plaintiff, that he had no intent to deceive the
defendant, admitted). 1909, Larson v. Thoma, 143 la. 338, 121 N. W. 1059 (intent to pur-
chase).
1911, State V. Hetrick, 84 Kan. 157, 113 Pac. 383 (false pretenses ; whether the cashier would
have paid if he had not believed the defendant to be the party personated, allowed).
1906, State v. Morin, 102 Me. 290, 66 Atl. 650 (intention in taking a Federal liquor-license).
1907, Pelkey v. Hodgdon, 102 Me. 426, 67 Atl. 218 (motive in placing a mortgage, admitted ;
quoting the above text).
1874, Knight v. Peabody, 116 Mass. 362 (false representations; "What induced you to
sign, etc. ?" allowed). 1906, Toole v. Crafts, 193 Mass. 110, 78 N. E. 775 (false representa-
tions inducing a waiver by defendant ; defendant's testimony to his state of mind as to
knowledge, allowed). 1912, Kapigiaii v. Der Minassian, 212 Mass. 412, 99 N. E. 264
(intent as to domicile).
1912, Isbell V. Anderson C. Co., 170 Mich. 304, 136 N. W. 457 (good faith in declaring a
forfeiture).
1905, Grout v. Stewart, 96 Minn. 230, 104 N. W. 966 (intent in delivering a deed in perform-
ance of a contract ; allowed).
1910, Oakes v. State, 98 Miss. 80, 54 So. 79 (by a defendant in libel, what was his motive in
publishing, allowed).
1912, Noonan v. Luther, 206 N. Y. 105, 99 N. E. 178 (defendant's intent in expeUing a
licensee).
1909, Crawford v. U. S., 212 U. S. 183, 29 Sup. 260 (an accused having taken surreptitiously
certain letters from a third person's file, with apparent intent to suppress inculpating evi-
dence, it was held proper for him to state that his intent was not to suppress them, but to
preserve them for use in his trial). 1912, Hedderly v. U. S., C. C. A., 193 Fed. 561 (intent
of entrymen in filing upon pubUc lands, allowed).
1908, TapUn v. Marcy, 81 Vt. 428, 71 Atl. 72 (intent of a vendor in taking lien notes on
lumber, allowed).
1904, Strasser v. Goldberg, 120 Wis. 621, 98 N. W. 554 (estoppel; whether the other party
relied on the statement, allowed). 1906, Brown v. State, 127 Wis. 193, 106 N. W. 536
(rape; to the prosecutrix, "Was it against your will?", allowed).
Compare the cases cited post, § 1963 (opinion rule).
§ 582. Testamentary Attesting Witness.
[Note 4; add:]
1907, Gump V. Gowans, 226 111. 635, 80 N. E. 1086. 1909, Jones v. Griesler, 238 111. 183, 87
N. E. 295 (executor). 1909, Fearn v. Postlethwaite, 240 111. 626, 88 N. E. 1057 (wife of
executor).
1908, Hiatt v. McColley, 171 Ind. 91, 85 N. E. 772. 1909, Wisehartu. Applegate, 172 Ind.
313, 88 N. E. 501.
1904, Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, 85 Pac. 407.
1903, Ravage v. Bulger, — Ky. — 76 S. W. 361, 77 S. W. 717.
1908, Swanzy v. Kolb, 94 Miss. 10, 46 So. 549 (opinion by Whitfield, C. J.).
1905, Mann v. Balfour, 187 Mo. 290, 86 S. W. 103.
1904, Wheelock's Will, 76 Vt. 235, 56 Atl. 1013.
Compare also the cases cited post, § 1510, n. 4 ("credible" attesting witnesses).
§ 584. Burden of Proving Disqualification.
[Note 1; add:] ,
1903, Terr. v. Cheong Kwai, 15 Haw. 280 (wife).
141
§586 TESTIMONIAL QUALIFICATIONS
§ 586. Time of Making Objection.
[Note 1 ; add :]
1909, Chicago Title & T. Co. v. Sagola L. Co., 242 111. 468, 90 N. E. 282.
[Note 7; add:]
1905,,Vickery v. State, 50 Fla. 144, 38 So. 907 (the trial Court in discretion may let all
the witnesses be sworn to testify, and postpone their voir dire examination till each one is
called).
[Note 10, 1. 3 from the end; add:]
In Missouri, a cross-examination is a waiver as to new matter only : 1907, McCune «. Good-
wilHe, 204 Mo. 306, 102 S. W. 997.
§ 600. Marital Relationship ; History.
[Note 3; add:]
1904, Brown v. State, 142 Ala. 287, 38 So. 268 (father).
1848, N. Y. Commissioners' Report (quoted ante, § 576).
§ 605. Mistress ; Bigamous Marriage.
[Notei.l 1; add:]
1905, State v. Wilson, 5 Penn. Del. 77, 62 Atl. 227 (assault with intent; a woman who had
signed a bond, etc., as defendant's wife, not excluded).
[Note 4 ; add, in a new paragraph :]
So, also a marriage since the time of the transaction or crime will 4isqualify.
1904, Elmore v. State, 140 Ala. 184, 37 So. 156 (wife excluded). Compare § 2239, notes
9-11, post.
§ 607. Interest in the Cause ; Nominal Party.
[Note 2; add:]
1904, Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, 85 Pac. 407 (husband of a legatee, allowed
to testify at probate as a subscribing witness).
§ 608. Effect of Statutes Qualifying Parties.
[Note 2; add:]
Accord: 1904, Schneider v. Sulzer, 212 111. 87, 72 N. E. 19.
[Note 4, par. 1 ; add :]
Accord: 1905, Hiskett v. Bozarth, 75 Nebr. 70, 105 N. W. 990 (distinguishing, but not
soundly, between husband and wife as witness).
1912, Freeman v. Freeman, 71 W. Va. 303, 76 S. E. 657.
Contra: 1906, Bentley v. Jun, — Nebr. — , 107 N. W. 865 (husband of plaintifF admitted,
where the plaintiff's success would give her property "in which her husband would have
no direct legal interest").
1906, White v. Poole, 74 N. H. 71, 65' Atl. 255.
1906, Guillaume v. Flannery, 21 S. D. 1, 108 N. W. 255 (under a statute expressly qualifying
husband and wife in general, a wife not/ pecuniarily interested may testify).
142
QUALIFICATIONS; INTEREST §615
§ 609. Co- Defendants.
[Note 1 ; add :]
1904, Henning v. Stevenson, 118 Ky. 318, 80 S. W. 1135 (wife of one ot several will-contest-
ants, not admissible for the others). 1903, Dovey v. Lam., 117 Ky. 19, 77 S. W. 383 (action
for battery against five jointly ; the wife of one of them, admitted to testify for the other
four; cases cited from Idaho and Indiana, but not the preceding ones in this State).
1904, State v. Sargood, 77\Vt. 80, 58 Atl. 971 (killing of colts; wife of a co-respondent,
jointly tried, excluded for the defendant).
§ 610. Death and Divorce.
[Note 2 ; add, under Accord :]
1878, Jaquith v. Davidson, 21 Kan. 341, 347 (action by G. D., revived after his decease;
his widow and executrix admitted for his estate; "Mr. D. being dead, she was no longer
testifying for or against him").
1909, Brown v. Patterson, 224 Mo. 639, 124 S. W. 1 (widow admitted on behalf of her
husband's grantee).
1903, McDowell v. McDowell's Est., 75 Vt. 401, 56 Atl. 99 (wife of a deceased mortgagee,
admitted in a foreclosure suit).
1905, Schultz V. Culbertson, 125 Wis. 169, 103 N. W. 234 (widow admitted in an action
against the executor on a contract).
[Note 3; add:]
1904, Turner's Trustee v. Washburn, — Ky. — , 80 S. W. 460.
§ 612. Necessity, as Creating Exceptions.
[Note 1; add:]
In Louisiana, under St. 1898, No. 190 (quoted ante, § 488), in actions for personal injuries
to a wife, the wife is admissible, but not the husband :
1899, Dunning v. West, 51 La. An. 618, 623, 25 So. 306 (here both were admitted).
1906, Martin v. Derenbecker, 116 La. 495, 40 So. 849 (modifying the preceding case, in the
light of St. 1902, No. 68, amending Civ. Code, § 2402).
§ 613. Statutory Exceptions ; Joint Parties.
[Note 4 ; add, under Louisiana :]
1904, Schoppel v. Daly, 112 La. 201, 36 So. 322 (husband admitted, in an action by the
wife for personal injuries). •
1906, Bianchi v. Del Valle, 117 La. 587, 42 So. 148 (in the wife's suit for personal injuries,
the husband, being joined, may not testify for her) ; but the effect of these rulings is altered,
for actions for personal injuries to a wife, by tl^e statute and cases cited ante, § 612, n. 1.
§ 614. Separate Estate.
[Note 1 ; add, under Illinois:]
1904, Booker v. Booker, 208 111. 529, 70 N. E. 709. 1907, Linkemann v. Knepper, 226 111.
473, 80 N. E. 1009. 1913, Marks v. Madsen, 261 111. 51, 103 N. E. 625.
§ 615. Wife as if Unmarried.
[Note 1 ; add :]
1904, Henning v. Stevenson, 118 Ky. 318, 80 S. W. 1135. 1907, Taylor v. Johnson, — Ky.
— , 99 S. W. 320 (action to cancel shares of stock). 1908, Walker's Assignees v. Walker,
_'Ky. — , 114 S. W. 338 (note by partnership). 1911, Weber v. Lape, 145 Ky. 769, 141
S. W. 67 (joint liability).
143
§616 TESTIMONIAL QUALIFICATIONS
§ 616. Agents.
[Note 1; add:]
Arkansas: 1908, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405.
Kentucky: 1904, Logsden v. Stern, 117 Ky. 217, 77 S. W. 927 (St. 1898, c. 1, construed to
mean that each may testify to the matters within his or her knowledge, but not both to
the same matters).
Louisiana: 1905, Shepherd v. Schomaker, 115 La. 542, 39 So. 554.
Vermont: 1905, Miller v. Stebbins, 77 Vt. 183, 59 Atl. 844. 1906, Boyce v. Bolster, 79 Vt.
40, 64 Atl. 79 (wife not admitted to prove a book account ; the trial took place before St.
1904, No. 60, p. 78, quoted ante, § 488).
Illinois: 1907, Donk Bros. C. & C. Co. v. Stroetter, 229 111. 134, 82 N. E. 250.
Oklahoma: 1912, Fish v. Bloodworth, 36 Okl. 586, 129 Pac. 32. 1913, Western N. L. Ins.
Co. V. Williamson H. F. Co., 37 Okl. 213, 131 Pac. 691.
Wisconsin: 1911, Karlen v. Hadinger, 147 Wis. 78, 132 N. W. 591.
§ 617. Sundry Statutory Provisions.
[Note 1 ; add ;]
1902, Corkum v. Corkum, 40 N. Sc. 488 (crim. con. by force ; plaintiff's wife not admitted
in his favor, under Rev. St. c. 163, § 36).
1905, Graves v. Rivers, 123 Ga. 224, 51 S. E. 318(under Code § 5272, the parties to an action
for breach of promise of marriage are disqualified). >
1913, Anderson v. Anderson, 140 Ga. 802, 79 S. E. 1124 (cited ipost, § 2245, n. 5).
1904, Floore ». Green, — Ky. — , 83 S. W. 133 (under Civ. C. § 606, a husband is admissible
in a probate contest where his wife is interested but does not testify).
1905, Com. D. Woelfel, 121 Ky. 48, 88 S. W. 1061 (preliminary issue of an accused's sanity;
the wife not admissible for him).
1907, Mitchell v. Brady, 124 Ky. 411, 99 S. W. 266 (under Civ. C. § 606, a wife may testify
for the administrator-husband in an action for the death of their child).
1914, Hirdes v. Ottawa Circuit Judge, — Mich. — , 146 N. W. 646 (action for having inter-
course with the plaintiff's wife after making her intoxicated ; if this was adultery, the wife
was not competent under Comp. L. § 10213 ; if it was rape, she was competent ; what loud
Jovian laughter must resound when Mercury calls attention to us mortals making rules
of credibility depend on the varieties of criminality in issue !).
1905, Grabowski v. State, 126 Wis. 447, 105 N. W. 805 (lascivious conduct; defendant's
wife excluded).
§ 620. Statutory Express Abolition.
[Note 1; add:]
Ind. T. : 1913, Birdwell v. U. S., — Okl. Cr. App. — , 135 Pac. 445 (under Ind. T. St. 1899,
§ 1974, a defendant's wife cannot testify for him).
Kan.: 1911, Harris v. Brown, C. C. A., 187 Fed. 6 (Kansas Gen. Stats. 1909, § 5915, C.
C. P. § 321, held to abolish all marital incompetency except for marital communications).
§ 650. Observation and Knowledge.
[Text, p. 764, 1. 14 from above ; add a note 1] :
' On the function of Perception, as affecting testimonial credit, the reader may consult
the passages from scientific works, collected in the present author's "Principles of Judicial
Proof" (Boston, 1913, pp. 426-461).
144
QUALIFICATIONS; KNOWLEDGE §657
§ 654. Burden of Proof of Knowledge Qualification.
[Notel; add:]
1903, Friday v. Pennsylvania R. Co., 204 Pa. 405, 411, 54 Atl. 339 (a witness to land-values
may be subjected to cross-examination as to his qualifications before expressing an opinion
on direct examination).
1904, Davis v. Pennsylvania R. Co., 215 Pa. 581, 64 Atl. 774 (similar).
Compare the general rule for voir dire as to interest (ante, § 585) and as to experience
(ante, § 560, n. 1).
[Note 2; add:]
1904, Norman P. S. Co. v. Ford, 77 Conn. 461, 59 Atl. 499 (where a deposition shows that
the witness speaks from hearsay only, the answer may be struck out ; though "if the witness
had been present to testify, the Court could have received these answers on the assumption
that he was speaking of what he knew ; leaving it to the defendants to show the contrary
if they could, on cross-examination or otherwise").
§ 655. Witness Specifying the Grounds of his Knowledge.
[Note 1, par. 1; add:]
1905, Braham v. State, 143 Ala. 28, 38 So. 919 (msanity).
1907, Salmon v. Rathjens, 152 Cal. 290, 92 Pac. 733.
1914, Alford v. State, 47 Fla. 1, 36 So. 436 (occurrence of a fire, as the reason for fixing
a date of seeing defendant, allowed).
1908, Albany Phosphate Co. v. Hugger, 4 Ga. App. 771, 62 S. E. 533 (witness testified
to present recollections based on a marked calendar, now lost ; " the weather bureau
reports verified what I had on my calendar"; the last reference held doubtful, but
admitted).
1910, Mayor of Baltimore v. Hurlock, 113 Md. 674, 78 Atl. 55^ (value-witness).
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (certain experiments, not admitted under
the present rule).
1911, Brown v. Chicago B. & O. R. Co., 88 Nebr. 604, 130 N. W. 265 (child's exclamation
directing witness' attention).
1913, Miller v. Pearce, — Vt. — , 85 Atl. 588 (recollecting an act of defendant by a remark
made about it).
But he is not obliged on direct examination to state his reasons :
1905, Com. V. Johnson, 188 Mass. 382, 74 N. E. 939.
§ 657. Knowledge must be founded on Personal Observation.
[Text, p. 751, at the bottom, after the Ayliffe, add a new note ^].
'^ " An old woman in the witness-box had been rattling on in the most voluble manner,
until it was impossible to make head or tail of her evidence. The judge [Hawkins], think-
ing he would try his hand, began with a soothing question. But the old woman would not
have it at any price. She replied testily, 'It's no use your bothering me. I have told you
all I know.' 'That may be,' said his lordship ; 'but the question rather is — Do you know
all you have told us?'" (Hon. A. C. Plowden, "Grain or Chaif; the Autobiography of
a Police Magistrate," 1903, p. 155).
[Note 1 ; add :]
1907, Moore v. Dozier, 128 Ga. 90, 57 S. E. 110 (whether a mother was financially able to
support her children, allowed, for a person famiUar with the family).
145
§ 657 TESTIMONIAL QUALIFICATIONS
§ 657. Knowledge founded on Personal Observation.
[Note 1 ; add :]
1905, Davis v. Arnold, 143 Ala. 228, 39 So. 141 (ownership).
1905, King v. Bynum, 137 N. C. 491, 49 S. E. 955 (proceedings at an auction).
1906, Rouss V. King, 74 S. C.'251, 54 S. E. 615 (accounts, etc.).
§ 659. Knowledge involving Rational Inferences.
[Text, par. 1, at the end ; add a new note 1 :]
■• For the use of testimony based on vacuum-rays, phonograph, telepathy, etc., see post,
§795.
§ 660. Identity of a Person, etc.
[Note 1, par. 1 ; add:]
1912, Rhea v. State, 104' Ark. 162, 147 S. W. 463 (voice distinguishing a white from a negro).
1907, Mack v. State, 54 Fla. 55, 44 So. 706.
1904, Com. V. Kelley, 186 Mass. 403, 71 N. E. 807 (assault by night).
1910, State v. Vanella, 40 Mont. 326, 106 Pac. 364.
1906, Waggoner v. State, — Tex. Cr. — , 98 S. ,W. 254.
[Note 2, par. 1 ; add:]
1904, Alford v. State, 47 Fla. 1, 36 So. 436 (identification from clothes, etc., allowed ; but
the witness must have had personal knowledge).
[Note 7; add:]
1905, Bryce v. Chicago, M. & St. P. R. Co., 129 la. 342, 105 N. W. 497 (by a brakeman,
that he could tell by the sensation, etc., that the emergency brake was set, allowed ; good
opinion by Weaver, J.).
1905, Wright v. Crane, 142 Mich. 508, 106 N. W. 71 (speed of an automobile ; witness not
qualified on the fa,cts).
§ 661. Another Person's State of Mind.
[Note 1, par. 1 ; add, under Contra :]
1906, Sneed v. Maiysville G. & E. Co., 149 Cal. 704, 87 Pac. 376 (boy killed by electrical
contact; his mother's testimony that he did not know of electrical dangers, excluded;
unsound on the facts; McLaughlin, J., diss.).
§ 662. Improbabilities in Scientific Testimony.
[Note 2, 1. 2; add:]
1905, Sun Ins. Office of London v. Western W. M. Co., 72 Kan. 41, 82 Pac. 513 (spontaneous
combustion).
1905, Post V. U. S., 135 Fed. 1, 11, 67 C. C. A. 569 (fraud in mental heaUng; good opinion
by Shelby, J.).
§ 663. Speculative Testimony to Personal Injuries.
[Note 1; add:]
1907, Cordiner v. Los Angeles Traction Co., 5 Cal. App. 400, 91 Pac. 436 (personal injury).
1911, Cross V. Syracuse, 200 N. Y. 393, 94 N. E. 184 (the Strohm case explained and limited).
146
QUALIFICATIONS; KNOWLEDGE §664
[Note 1 — continued]
1909, Bucher v. Wisconsin Central R. Co., 139 Wis. 597, 120 N. W. 518 (permanence of
impotency).
[Note 2; add:]
1908, Donnelly v. Chicago City R. Co., 235 111. 35, 85 111. 233 (probable effect of injury,
admitted).
§ 664. Negative Knowledge.
[Note 1; add:]
1906, Kastor Advertising Co. v. Coleman, 11 Ont. L. R. 262, 267 (whether certain advertise-
ments were published, etc.).
1904, Hart v. Taylor, 37 N. Sc. 155 (conversations).
1913, Thompson v. Los Angeles k L. D. B. R. Co., 165 Cal. 748, 134 Pac. 709 (witnesses
who heard no motorman's signal, admitted).
1912, Colorado & S. R. Co. v. Lauter, 21 Colo. App. 101, 121 Pac. 137 (locomotive whistle).
. 1910, Grand Trunk Western R. Co. v. Reynolds, 175 Ind. 161, 92 N. E. 733 (railroad
signals).
1913, Philadelphia B. & W. R. Co. v. Gatta, — Del. — , 85 Atl. 721 (careful opinion by
WooUey, J.).
1906, Warrick v. State, 125 Ga. 133, 53 S. E. 1027 (murder).
1905, Northern C. R. Co. v. State, 100 Md. 404, 60 Atl. 19 (bystanders not hearing an engine-
bell, said to be some evidence).
1904, McDonald v. N. Y. C. & H. R. R. Co., 186 Mass. 474, 72 N. E. 55 (raih-oad signals).
1909, Slattery v. New York N. H. & H. R. Co., 203 Mass. 453, 89 N. E. 622.
1906, Cotton D.Willmar & S. F. R. Co., 99 Minn. 366, 109 N. W. 835 (ringing of bell).
1910, People v. Faber, 199 N. Y. 256, 92 N. E. 674 (approving the above passage).
1904, Chicago & N. W. R. Co. v. Andrews, 130 Fed. 65, 70, 64 C. C. A. 399 (raih-oad
train).
1909, He V. Boston & Maine R., 83 Vt. 66, 74 Atl. 401 (that no other cause for a fire was
seen than engine-sparks, allowed). 1912, Barney's Adm'x Quaker Oats Co., 85 Vt. 372,
82 Atl. 113 (that the deceased and others had never been heard to say anything about the
danger of a dust explosion, admitted). 1911, Comstock's Admir. v. Jacobs, 84 Vt. 277,
78 Atl. 1017 (wife's not hearing of directions given by husband).
1911, Kahaley v. Frye, 62 Wash. 43, 113 Pac. 247 (injury by a runaway team).
1911, Brown v. Milwaukee E. R. L. Co., 148 Wis. 98, 133 N. W. 589. 1913, Marinette v.
Goodrich T. Co., 153 Wis. 92, 140 N. W. 1094 (whistle).
This kind of evidence usually gives rise to a quibbling and futile discussion as to the
relative weight of positive and negative testimony ; the rule of law, however, has really noth-
ing to say on such subjects, which go to the jury for determination. In the following cases,
and many cited supra, the Supreme Court was improperly asked to hold that an instruction
on the relative weight of negative knowledge should be given :
1906, Dillman v. McDanel, 222 111. 276, 78 N. E. 591.
1905. State v. Murray, 139 N. C. 540, 51 S. E. 775.
A rule-of-thumb for measuring testimonial weight has here grown up : "Where two
witnesses, unimpeached, contradict each other, the presumption is in favor of the witness
who swears affirmatively." This rule-of-tliumb can be seen to be childish in its ignoring
of the complex elements of all testimony, if one will consult the numerous passages from
psychological works collated in Part II of the present writer's "Principles of Judicial Proof"
(1913). The rule is a discredit to the science of law, and should be discarded. The vain
lucubrations to which it leads (e.g. in Anderson v. Horlick M. M. Co., 137 Wis. 569, 1908,
119 N. W. 342) have no relation to the real probative value of specific testimony.
147
§ 665 TESTIMONIAL QUALIFICATIONS
§ 665. Hearsay Knowledge from Experts.
[Note i, I. 2; add:]
The cases on different forms of lenses are placed post, § 795, and on the telephone and the
dictagraph, post, § 669.
[Note 4:; add:]
N. Y. St. 1851, c. 134, § 33, amended St. 1893, c. 101, § 1, re-enacted in St. 1909, c. 65, p. 22,
Feb. 17 (adding § 841a to the C. C. P. ; no surveyor shall testify to a survey of lands with-
out oath or other evidence, on demand, that "the chain or measure used by him was con-
formable to the standards of the State " at the time of survey ; official sealer's certificate,
admissible).
[NoteQ; add:]
1906, Kemsburg v. lola P. C. Co., 73 Kan. 66, 84 Pac. 548 (expert on explosives, speaking
partly from book learning, admitted).
§ 667. Testifying to One's Own Age.
[Note 1 ; add, under Accord :]
1904, MeCollum v. State, 119 Ga. 308, 46 S. E. 413 (selling liquor to A., a minor ; A. allowed
to testify to his own age, though he knew it only from his mother, who was living and in the
county).
1905, State v. Miller, 71 Kan. 200, 80 Pac. 51 (even though parents are available).
1905, People v. Colbath, 141 Mich. 189, 104 N. W. 633 (rape under age ; the prosecutrix
being permitted to testify to her own age, a cross-examination as to what others, not mem-
bers of the family, had told her, was held properly excluded ; three judges diss.).
1906, Curry v. State, 50 Tex. Cr. 158, 94 S. W. 1058.
1903, Loose v. State, 120 Wis. 115, 97 N. W. 526.
Undecided: 1910, R. v. Farrell, 21 Ont. 540 (liquor-selling to a minor).
Of course, as admissions such statements are receivable :
1910, The King v. Turner, 1 K. B. 346, 362 (accused's statement of his age, as given for
entry on the prison record ; here the issue was whether he had been convicted three times
since the age of 16, so as to be sentenced as an habitual criminal).
[Text, p. 764,,at the end ; add a new par. (6)o :]
(6)a. A person's non-residence or noro-existence in a plax;e is in the practical
aflFairs of life constantly ascertained by inquiries made and answers received
in the region of alleged residence. Testimony based on such inquiries should
be received. But many Courts have perversely applied here the strict rule.
The frequent uses of such testimony occur in proof of a witness' non-residence
and a document's loss.*^
*• The cases are found in the following places : §§ 668, 1196, 1313, 1405, 1725, 1789.
The following case may serve as the lecturer's " horrible example " of extreme perver-
sity ; it shows the possibilities of non-common-sense which to-day can be exhibited by
our courts ; 1909, Chambers v. Morris, 159 Ala. 606, 48 So. 687 ; " Dowdell, J. The
witness John W. Chambers, having testified on his direct examination that one CoUn
S. Varnum, who had been examined as a witness on a former trial of the case, was
dead, was then permitted to testify as to what the said Varnum had sworn on the
former trial. On the cross-examination of Chambers he was asked by counsel
how he knew that Varnum was dead, in answer to which he said : ' I went to
Varnum's former home in Houston County, Ala., and he was not there^ His family
was there, and they told me he was dead, and that he died at the time named. I saw
148
'■ QUALIFICATIONS; KNOWLEDGE, §677
[Text, p. 7&4 -^ continued]
his family physician, who told me that he attended him in his last sickness, and that he
(Varnum) was dead. His former neighbors told me that Varnum was dead. I did not
see him myself after death; and know that he is dead only from what these persons told
me.' Thereupon the court, on motion of the plaintiff, excluded all of the testimony of
the witness Chambers as to what Varnum swore on the former trial. In this there was
no error. Evidence of the declarations of the physician and the neighbors as to the death
of Varnum were hearsay, and by no rule of evidence admissible."
§ 669. Information received by Telephone.
[Note 2 ; add, as par. 3 :]
Distinguish also the followmg : 1904, McCarthy v. Peach, 186 Mass. 67, 70 N. E. 1029
(contract ; the plaintiff conversed by telephone with the defendant, and a person present
with the plaintiff was allowed to testify to the plaintiff's words, as a part of the conversation
of the defendant, there being other evidence that the defendant was the person conversing
from the other end of the line ; this rests on the principle of § 2115, post).
[Text, p. 765, 1. 23 ; after "the principle of § 665, ante," add a new note la :]
'" The dictagraph, as a form of telephone, is equally available :
1913, State MinneapoUs Milk Co., — Minn. — , 144 N. W. 416 (detective's testimony to
conversations heard by a dictagraph installed in the room where the conversers were,
admitted; point not disputed).
1914, People v. Eng Hing, N. Y., 106 N. E. 96 (affidavits based on dictagraph listening,
received on a motion for a new trial).
§ 672. Hypothetical Questions ; General Theory.
[Text, p. 767, 1. 4 from below; after "founded," insert a new note a :]
" Approved in Kearner v. Tanner Co., 31 R. I. 203, 76 Atl. 833 (1900).
§ 675. Where Personal Observation is had, Hypothetical Presentation is
TTnnecessary.
[Note 1; add:]
1914, Southern Iron & E. Co. v. Smith, — Mo. — , 165 S. W. 804 ("In what condition were
the engines?" "They were good," not allowed for the very persons who had overhauled
them; this is absurd, and Graves, J., rightly dissents).
§ 676. Where Personal Observation is Lacking, Hypothetical Presentation
is Necessary.
[Note 1; add:]
1906, Federal B. Co. «. Reeves, 73 Kan. 107, 84 Pac. 560 ("From the history of the case,
as you learned it [from others], and from your diagnosis," excluded ; Porter, J., diss.).
1911, Weibert v. Hanan, 202 N. Y. 328, 95 N. E. 688 (opinion as to capacity of heatmg-
apparatus).
§ 677. Personal Observation not Necessary, when Hypothetical Presenta-
tion is Used.
[Note 1 ; add, under Accord:]
1904, Pairish v. State, 139 Ala. 16, 36 So. 1012.
149
§ 678 TESTIMONIAL QUALIFICATIONS
§ 678. Some Skilled Witness may testify from both Personal Observation
and Hypothetical Presentation.
[Note 1 ; add :]■ i
Accord: 1909, Washington A. & M. V. R. Co. v. Lukens, 32 D. C. App. 442 (physician's
answer based on a hypothetical question plus the facts as examined by him, admitted,
because he had already stated the facts as examined by him).
Contra: 1908, Cobb v. United E. & C. Co., 191 N. Y. 475, 34 N. E. 395, semble.
§ 679. Only Skilled Witnesses, etc.
[Note 1; add:]
1906, Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695.
1912, Chicago & W. I. R. Co. v. Heidenreich, 254 111. 231, 98 N. E. 567 (hypothetical opinion
of value, based on lists of sales of other property, submitted to the witness, held improper, on
the singular ground that value testimony is not expert testimony).
Even on croaa-examination to test the opinion already expressed :
1912, Lang v. Lang, — la. — , 135 N. W. 604.
§ 680. If the Premises Fail, etc.
' [Note 1 ; add :]
1904, Stutsman v. Sharpless, 125 la. 335, 101 N. W. 105.
[Note 2; add:]
1909, Peterson v. Brackey, 143 la. 75, 119 N. W. 967 (phrasing of the instruction, discussed).
Contra: 1909, Burk v. Reese, — Nebr. — , 121 N. W. 1016 (here the Court lays down the un-
practical and logic-beridden rule that if any one assumption, however unimportant, is not
established, the opinion must be rejected).
§ 681. Form and Scope of Question; Particularized Premises.
[Nate 1; add:]
1913, Prewitt v. State, — Miss. — , 63 So. 330 (question based partly on unspecified personal
knowledge, partly on unspecified testimony, and partly on specified data, held improper on
the facts).
[Note 2; add:]
1913, State v. Reilly, — N. D. — , 141 N. W. 720, 734.
[NaleZ; add:]
1907, Decker v. Chicago, M. & St. P. R. Co., 102 Minn. 99, 112 N. W. 901.
[Note 4 ; add, under Contra :]
1907, Chicago Union Traction Co. v. Roberts, 229 111. 481,82 N.E.401 (here allowed, only
because proper objection was not made).
[Note 5; add, under Admitted:]
1905, Com. V. Johnson, 188 Mass. 382, 74 N. E. 939 ("From all you have observed of this
man, and from all you have heard in court," allowed, where the only evidence as to insanity
consisted of the defendant's own witnesses and admissions, accepted as true, and the expert's
personal observation ; the trial Court's discretion to control).
150
QUALIFICATIONS; KNOWLEDGE §682
[Note 7; add:]
1909, People v. LeDoux, 155 Cal. 535, 102 Pac. 517 (question based on testimony of
"certain other witnesses," excluded).
1904, Burnside v. Everett, 186 Mass. 4, 71 N. E. 82 (question based on the testimony of
several witnesses not conflicting, held proper).
•1908, Walters v. Rock, 18 N. D. 45, 115 N. yV. 511 (allowed, but disapproved).
[Note 8 ; add, under Excluded :]
III. : 1905, Elgin A. & S. Traction Co. v. Wilson, 217 111. 47, 75 N. E. 436 (opinion based in
part on the testimony of the plaintiff, excluded).
Ind: 1911, Ditton v. Hart, 175 Ind. 181, 93 N. E. 961 (opinion based on a clause in the will
and a letter from the draughtsman, excluded; opinion obscure).
Minn. : 1906, State v. Cowing, 99 Minn. 123, 108 N. W. 851, semble.
Mo. : 1903, State v. Dunn, 179 Mo. 95, 77 S. W. 848 (testimony of defendant himself).
N. J. : 1904, Shoemaker v. Elmer, 70 N. J. L. 710, 58 Atl. 940.
[Note 8 ; add, under Admitted:]
1913, Latourette v. Miller, — Or. — , 135 Pac. 327 (but here excluded, because the witness
had heard only a part).
U. S.: 1912, M'Intyre v. Modern Woodmen, 6th C. C. A., 200 Fed. 1 (distinguishing
Manuf. A. I. Co. v. Dorgan, infra; the two cases illustrate the degree of weird logic and
dream-reasoning which some Courts have developed on this topic).
[Noted; add:]
1904, Smith v. Minneapolis St. R. Co., 91 Minn. 239, 97 N. W. 881 (excluded where it did
not appear that the witness had heard the testimony referred to in the question).
§ 682. Kind of Data that may be Assumed.
[Note 1; add:]
1904, Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28.
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (Anderson v. Albertstamm, approved).
1909, Carroll v. Boston Elev. R. Co., 200 Mass. 527, 86 N. E. 793.
1904, State v. Brown, 181 Mo. 192, 79 S. W. 1111.
1904, McDonald v. Rhode Island Co., 26 R. I. 467, 59 Atl. 391 (the evidence must be offered
before stating the question; unless in the discretion of the trial Court).
1910, State ». Swanson, 26 S. D. 589, 129 N. W. 119.
[Text, p. 777, last line; add:]
It is sometimes said '" that " an opinion of an expert cannot be based upon
i« 1910, Keamer v. Tanner Co., 31 R. I. 203, 76 Atl. 833.
opinions expressed by other experts," but this is quite unsound. Keeping
in mind that the distinction between " fact " and " opinion " has here no
value {ante, § 672, post, § 1919), it will be seen that the basis for a hypothetical
opinion may be either data observed or data inferred, and that inferred data
presented by expert testimony may equally well become a part of the basis
for a hypothetical question ; e. g. (as in the case cited) a fireman may testify
to coal in the furnace, and a chemist may testify that the gas generated would
be carbon monoxide, and then another expert may be asked what would be
the effect of an explosion of carbon monoxide on starch dust in the oven room.
151
§ 682 TESTIMONIAL QUALIFICATIONS
[Text, p. 777 — continued]
There is no mysterious logical fatality in basing " one expert opinion upon
another " ; it is done every day in business and in applied science.
[NoU2; add:]
1906, Ince v. State, 77 Ark. 426, 93 S. W. 65 (.approving the above passage). 1911, Missouri
& N. A. R. Co. V. Daniels, 98 Ark. 352, 136 S. W. 651 (subject to the trial Court's discretion).
1909, Perkins v. Sunset Tel. & T. Co., 155 Cal. 712, 103 Pac. 190.
1909, State v. Crowe, 39 Mont. 174, 102 Pac. 579.
1909, Landis & Schick v. Watts, 84 Nebr. 671, 121 N. W. 980 (but here a special and not
very clear rule of restriction is laid down).
1909, Crosby v. Portland R. Co., 53 Or. 496, 100 Pac. 300 (enough for "forming an intelli-
gent opinion on the subject considered").
1909, Gillman v. Media M. A. & C. E. R. Co., 224 Pa. 267, 73 Atl. 342 (but here stating too
narrow a limitation).
1904, State v. Underwood, 35 Wash. 558, 77 Pac. 863.
1904, Schissler v. State, 122 Wis. 365, 99 N. W. 593.
[Noted, 1. 2; add:]
1912, Williams v. Fulkes, 103 Ark. 196, 146 S. W. 480.
1910, Grill V. O'Dell, 113 Md. 625, 77 Atl. 984.
1906, Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 310.
[Note 4l ; add :]
1908, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 (question held here improper).
1904, Aledo v. Honeyman, 208 111. 415, 70 N. E. 338.
1909, Miller v. Leib, 109 Md. 414, 72 Atl. 466.
[Note 7; add:]
1909, Burk v. Reese, — Nebr. — , 121 N. W. 1016 (question of 8000 'words held improper,
because introducing the opponent's case on cross-examination).
§ 683. Form of Question must be expressly Hypothetical.
[NoU2; add:]
1907, Parrish v. High Point R. A. & S. R. Co., 146 N. C. 125, 59 S. E. 348 (cause of an in-
jury).
[Note 3; add:]
1910, Nolan v. Newton St. R. Co., 206 Mass. 384, 92 N. E. 505 (an electrical expert's testi-
mony, referring to a car jumping "in the way that has been described" by the plaintiff
when testifying, held proper).
§ 684. Hypothetical Questions on Cross-examination.
[Note 1; add:]
1910, Pensacola Electric Co. v. Bissett, 59 Fla. 360, 62 So. 367.
§ 687. Physician's Knowledge based on Books.
[Note 2; add:]
Admitted: 1905, State v. Donovan, 128 la. 44, 102 N. W. 791 (possibility of a surgical opera-
tion under hypnotism).
152
QUALIFICATIONS; KNOWLEDGE §688
[Note 2 — continued] _
1909, United R. & E. Co. v. Corbin, 109 Md. 442, 72 Atl. 606 (approving the above passage).
Excluded: 1904, Kath v. Wisconsin C. R. Co., 121 Wis. 603, 99 N. W. 217 ("what he learns
entirely from medical works, unsupported by practical experience of his own," is inadmis-
sible).
For analogous cases, under a slightly different principle, see ante, § 569.
[Text, p. 782, at end of section; add:]
The great dramatist knew this well enough :
Pericles, III, 2 (Cermion explains his skill in physic) :
... 1 ever
Have studied physic, through which secret art
By turning o'er authorities, I have —
Together with my practice — made f amiUar
To me and to my aid the blest infusions."
Physician's Knowledge based on Hearsay.
[Note 2; add:]
Accord: 1913, Washington A. & M. U. R. Co. v. Fincham, 40 D. C. App. 412 (examination
for vision, by using a perimeter and the patient's statements as to its effect on him ; ad-
mitted).
1907, Chicago v. McNally, 227 111. 14, 81 N. E. 23 (testimony admitted on the facts).
1908, Walters v. Rock, 18 N. D. 45, 115 N. W. 511.
1911, Myhra v. Chicago M. & P. S. R. Co., 62 Wash. 1, 112 Pac. 939.
Contra: 1905, Stevens v. People, 215 111. 593, 74 N. E. 786 (abortion; physician's opinion
based in part on "information derived from the patient," excluded; unsound). 1905,
Chicago City R. Co. v. McCaughna, 216 id. 202, 74 N. E. 818 (personal injury ; similar
ruling). 1907, Chicago U. Traction Co. v. Giese, 229 111. 260, 82 N. E. 232 (ignoring the
above Illinois cases). 1908, Greinke v. Chicago City R. Co., 234 111. 564, 85 N. E. 327 (this
opinion, while carefully avoiding mention of physician's diagnosis as ordinarily obtained,
confines itself to excluding testimony of a physician who (a) has not treated the injured
party, but (6) has examined him solely to qualify as a witness in a personal injury trial, and
(c) bases his opinion upon the statements of the injured party; and applies this rule to
exclude an opinion based on voluntary acts such as walking, hand-pressing, etc.). 1908,
Shaughnessy v. Holt, 236 111. 485, 86 N. E. 256 (personal injury; physician's opinion based
on tests involving the patient's sensations and answers, at an examination solely to qualify
as witness, excluded).
1904, HoUoway v. Kansas City, 184 Mo. 19, 82 S. W. 89 (not appreciating the precise nature
of the question).
1909, Chesapeake & O. R. Co. v. Wiley, 134 Ky. 461, 121 S. W. 402 (applied to testimony of
physicians called solely to qualify as witnesses, and not for treatment ; yet this should make
no difference to exclude the testimony ; how unpractical Courts continue to be, in thinking
that the way to get at the truth is to exclude all testimony which may often be based upon
a he ; that is the old-fashioned notion, applied in the disqualification of a witness for interest,
but now exploded ; it is a helpless, mechanical rule, which is suited for a solemn game, but
not to a practical virile determination to get at the facts).
1906, Federal B. Co. v. Reeves, 73 Kan. 107, 84 Pac. 560 (Porter, J., diss.). 1910, Dean v. Wa-
bash R. Co., 229 Mo. 425, 129 S. W. 953 (objective and subjective symptoms may be distin-
guished; though of course not when the physician is testifying on a hypothetical question).
1909,,People v. Hill, 194 N. Y. 16, 87 N. E. 813 ("an expert witness cannot be permitted to
give an opinion as to the mental condition of a person at the time of the commission of a
criminal act, based upon a statement not in evidence, made by a party in his own behalf
153
§ GS8 TESTIMONIAL QUALIFICATIONS
[Note 2 — continued]
after the commission of the act, which pertains to his past conduct"; this may be not in
itself logically unreasonable, but the judicial tendency to lay down unpractical rules whicb
are prteposterously opposed to ordinary medical practice ought to be checked if justice is
to maintain the respect of the other learned professions).
1913, Lee 11. Kansas C. S. R. Co., D. C. W. D. Ark. 206 Fed. 765 (physician called in to
qualify as a witness may testify to an opinion based on objective symptoms only, not on the
patient's statements in part or entirely ; it is regrettable to see a Federal Court giving in to
this modern heresy, which commits the exploded fallacy of totally prohibiting weak evidence
instead of merely ensuring the exhibition of its weaknesses).
Not decided: 1913, Cooper v. Lenboard A. L. R. Co., 163 N. C. 150, 79 S. E. 418.
[Note 5 ; add, under Contra ;]
1904, Schissler ». State, 122 Wis. 365, 99 N. W. 593 (opinion based on the patient's statement
of a past illness, excluded)..
[NoteQ; add, waAeT Accord:]
1908, Federal Betterment Co.. v. R«eves, 77 Kan. Ill, 93 Pac. 627 (following A. T. &
S. F. R. Co. s. Frazier).
1913, Hintz v. Wagner, — S. D. — , 140 N. W. 729.
1912, Union Pacific R. Co. v. M'Mican, C. C. A., 194 Fed. 393 (physician's opinion based in
part on the plaintiff's history of the injury as given to the physician and not stated hypo-
thetically, excluded; opinion confuses this principle and that of § 1918, post).
[NoteT; add:]
1910, Davis v. State, 96 Ark. 7, 130 S. W. 547.
§ 689. Layman's or Physician's Acquaintance with Person Insane.
[Note 2, add:]
Ala. : 1905, Braham «. State, 143 Ala. 28, 38 So. 919 (witness held not qualified by observa-
tion). 1911, Odom V. State, 174 Ala. 4, 66 So. 913. 1913, Jones v. State, — Ala. — , 61
So. 434.
Cal: 1904, People v. Manoogian, 141 Cal. 592, 75 Pac. 177 (Holland v. ZoUner and People
V. McCarthy, supra, followed ; this distinction is now a settled and important one in this
court). 1904, People v. Suesser, 142 Cal. 354, 75 Pac. 1093 (trial Court's determination
controls as to who are "intimate acquamtances"). 1904, McKenna's Estate, 143 id. 680,
77 Pac. 461 (same). 1906, Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695 (question based in
part upon "the facts you have learned" by hearsay, excluded). 1907, People v. Clark,
151 Cal. 200, 90 Pac. 549 (trial Court's discretion controlled). 1910, People v. Vaughn,
14 Cal. App. 201, 111 Pac. 620 (the Code requirement of "intimate acquaintance" does not
apply where the injury is only as to the appearance at a certain time ; apart from this, a
jailer who has had an accused in custody for three months is qualified ; following People v.
McCarthy). 1910, People v. Loper, 159 Cal. 6, 112 Pac. 720.
111. : 1904, Chicago U. T. Co. v. Lawrence, 211 111. 373, 71 N. E. 1024 (certain witnesses held
qualified on the facts). 1912, Martin v. Beatty, 254 111. 615, 98 N. E. 996 (largely left to
trial Court's discretion).
la. . 1904, Stutsman v. Sharpless, 125 la. 335, 101 N. W. 106. 1
Kan. : 1906, Kempf v. Koppa, 74 Kan. 153, 85 Pac. 806. 1909, State v. Rumble, 81 Kan.
16, 105 Pac. 1 (no general rule).
Ky. : 1904, Irvine v. Gibson, 117 Ky. 306, 77 S. W. 1106.
La. : 1904, State v. Lyons, 113 La. 959, 37 So. 890 (there must be an adequate opportunity of
observation).
154
QUALIFICATIONS; KNOWLEDGE §693
[Note 2 — continued]
Md.: 1910, Grill v. O'Dell, 113 Md. 625, 77 Atl. 984.
Mont.: 1907, State v. Penna, 35 Mont. 535, 90 Pac. 787 (trial Court's discretion controls;
but here two reporters who had interviewed the party for a half hour only were held not
qualified). 1911, State v. Leakey, 44 Mont. 354, 120 Pac. 234.
Nebr.: 1912, Larson v. State, 92 Nebr. 24, 137 N. W. 894 (a bizarre opinion; Rose, J.,
'diss., and Letton and Fawcett, JJ., declining to join in the reasoning).
Or.: 1911, State ji. Hassing, 60 Or. 81, 118 Pac. 195 (like State v. Feister).
Tenn. : 1907, Atkins v. State, 119 Tenn. 458, 105 S. W. 353.
U.S.: 1909, Turner v. American Security & T. Co., 213 U. S. 257, 29 Sup. 420 ("We are
asked to review that discretion [of the trial Court]. . . . We have no hesitation in declin-
ing to do this").
§ 690. Knowledge of Foreign Law.
[Note 2; add:]
Accord: Brailey v. Rhodesia Consolidated [1910], 2 Ch. 95, 102 (lecturer on Roman-Dutch
law in London, admitted to testify on the law of Rhodesia, though "he is not actually
practising in Rhodesia ")■
[Note 3, par. 1 ; add:]
1905, Massucco v. Tomassi, 78 Vt. 188, 62 Atl. 57 (an Italian priest, allowed to testify that
a religious ceremony alone was not vahd in Italy).
§ 691. Character- Witness must appear Qualified.
[Note 1, par. 1 ; add^]
1907, Moore v. Dozier, 128 Ga. 90, 57 S. E. 110 (testimony based merely on hearing witnesses
at a former trial, excluded).
1906, State v. Rester, 116 La. 985, 41 So. 231.
§ 692. Knowledge based. on Residence.
[Note 1 ; add, under Accord :]
1907, Tingley v. Times M. Co., 151 Cal. 1, 89 Pac. 1097 (a witness from Arkansas who went
to Newburyport, Mass., and stayed a few days to make the inquiries, excluded).
[Note 2 ; add, in col. 1 :]
Ind. : 1904, South Bend v. Turner, 163 Ind. 194, 71 N. E. 657 (a witness who has heard
only one person speak to the repute of another, and does not know the latter personally, is
not qualified).
V. S. : 1912, Young v. Corrigan, D. C. N. D. Ohio, 208 Fed. 43 (detective employed to
inquire into Reputation, excluded, citing the text above).
[Note 2, col. 2, 1. 3, from below; add:]
Contra: South Bend v. Tinker, Ind., supra, semble.
§ 693. Handwriting ; Identifying Eliterate's Mark.
[Note 2, par. 2 ; add, under Accord:]
1904, Ballow v. Collins, 139 Ala. 543, 36 So. 712 (an illiterate mortgagor may identify his
own mark, but perhaps not the attestation of the witness thereto ; but here the execution
was held not sufiiciently proved, because it appeared that the illiterate mortgagor was not
155
§693 TESTIMONIAL QUALIFICATIONS
[Note 2 — continued]
actually testifying from a knowledge of the peculiarity of his mark, but from having been
told by C. that this was the mortgage he signed).
1910, Ausmus V. People, 47 Colo. 167, 107 Pac. 204
1895, Little v. Rogers, 99 Ga. 95, 24 S. E. 856.
§ 694. Handwriting ; Number of Times.
[Note 1; add:]
1910, Derrick's Case, 5 Cr. App. 162.
1906, State v. Bond, 12 Ida. 424, 86 Pac. 43 (general principle approved).
1905, Frank v. Berry, 128 la. 223, 103 N. W. 358, semble.
1910, Murphy v. Murphy, 146 la. 255, 125 N. W. 191 (a blind girl who before blindness had
once seen an autograph 19 years before and then the disputed letter a year later when
13 years of age ; the testimony held to be of little value).
1906, State v. Freshwater, 30 Utah 442, 85-Pac. 447.
1909, State v. Kent, 83 Vt. 28, 74 Atl. 389
§ 695. Len^h of Time Beforehand.
1910, Murphy v. Murphy, 146 la. 255, 125 N. W. 191 (cited supra, § 694, n.).
§ 696. Quantity of Writing Seen.
[Note 1; add:]
1907, Rinker v. U. S., 151 Fed. 755, 760, C. C. A. (witnesses of "limited acquaintance"
admitted).
§ 697. Writing Post Litem Motam ; After-Acquired Knowledge.
[Note 4, par. 2 ; add:]
Accord: 1912, Cochran v. Stein, 118 Minn. 323, 136 N. W. 1037.
Contra : 1910, Murphy v. Murphy, 146 la. 255, 125 N. W. 191 (here the witnesses had seen,
15 years before, a letter purporting to be from M., and material as an admission, but now
lost ; they were shown three signatures proved to be M.'s, and testified that the writing was
the same ; this was held improper, on the ground of § 2004, post, that lay testimony based on
comparison is inadmissible ; but the opinion misses the point that the real reason for that
rule is that comparison may equally well be made by the jury and hence lay testimony is
not needed, and that here the disputed letter was lost, hence the jury would not compare it ;
the unsoundnessof the decision may be seen by its result, viz. that all testimony to the lost
letter's handwriting was virtually shut out, at least, if it be assumed that the witnesses
were not qualified by the mere perusal of the lost letter to state that it was in M.'s hand).
§ 698. Quality of Witness' Opinion.
[Note 1; add:]
Of course, on the principle of § 655, ante, the witness may point oid the peculiarities that
affect his opinion.
1909, Nagle v. Schnadt, 239 111. 595, 88 N. E. 178.
§ 701. Implied Admissions.
[Note 1, par. 1 ; add:]
1913, Langley v. Joudrey, N. Sc. S. C, 13 D. L. R. 563 (forgery of two notes; bank
manager admitted, through whose bank had been negotiated paper given by the parties).
1904, Shaffer v. U. S., 24 D. C. App. 417, 430 (various persons held qualified on the facts).
156
QUALIFICATIONS; KNOWLEDGE §714
[Note 1, par. 2; add:]
1906, State v. McBride, 30 Utah 422, 85 Pac. 440 (here the offer was treated as being in
effect a comparison of specimens; Straup, J., correctly dissents).
§ 702. Mere Exchange of Correspondence.
[Note 3; add:]-
1909, Turner's Case, 3 Cr. App. 103, 155 [1910], 1 K. B. 346 (document of consent signed
by Director of Public Prosecutions; "it is suflScient if somebody, for instance, who has
been in correspondence with the Director of Public Prosecutions says, 'I received this in ordi-
nary course, and I believe it to be signed by the Director of Public Prosecutions.' ... All
that the Court say is, that there must be some kind of proof of it, but it must not necessarily
be proof of somebody who says, 'I have seen the gentleman write,' which, in the old-fash-
ioned days, at any rate, was the technical way of proving the signature").
1869, Bruce v. Crews, 39 Ga. 544, 547 (a clerk in a commercial house who had seen letters
purporting to come from C, but not in reply to others, held not qualified to C.'s handwriting) .
1907, Nichols & Shepard Co. v. Ringler, 135 la. 181, 112 N. W. 543 (testimony based on
" correspondence," admitted).
1906, State v. Goldstein, 72 N. J. L. 336, 62 Atl. 1006 (business correspondence with a tenant
for three years, held to qualify).
1913, Hoisting Machinery Co. v. Goeller I. Works, 84 N. J. L. 504, 87 Atl. 331 (one who had
received letters from J. G. and had been paid for contracts based on them, admitted).
§ 704. Custodians of Records.
[Note 1, par. 1 ; add:]
1905, Wooldridge v. State, 49 Fla. 137, 38 So. 3 (a member of a school board who had often
seen the superintendent's handwriting on warrants, held qualified).
1904, Gress Lumber Co. v. Georgia P. S. Co., 120 Ga. 751, 48 S. E. 115 (clerk of a city
council, who had many times seen the signature of O. in the minutes of the city council, in
former years, held not qualified to O.'s signature ; wholly erroneous ; none of the cases on
this part of the doctrine are considered).
1911, Nicholson v. Eureka L. Co., 156 S. C. 59, 72 S. E. 86 (grandson having custody of
grandfather's documents, admitted).
1905, Whitaker v. Thayer, 38 Tex. Civ. App. 537, 86 S. W. 364 (deceased deputy-clerk's
writing in a land-ofiice, proved by the officer).
§ 714. Knowledge of Land- Value.
[Note 1; add:]
1909, Schmidt v. Beiseker, 19 N. D. 35, 120 N. W. 1096.
1913, Fire Ass'n of Phila. v. Farmers' Gin Co., 39 Okl. 162, 134 Pac. 443 (cotton gin).
19^05, Hope V. Phila. & W. R. Co., 211 Pa. 401, 60 Atl. 996.
New Jersey seems pedantically strict :
1909, Morrell v. Preiskel, — N. J. L. — , 74 Atl. 994.
[Note 4; add:]
1906, Lally v. Central V. R. Co., 215 Pa. 436, 64 Atl. 633.
[Noted; add:]
1904, Muskeget Island Club v. Nantucjset, 185 Mass. 303, 70 N. E. 61 (assessor).
157
§ 714 TESTIMONIAL QUALIFICATIONS
[Note 10; add:]
1906, Lewis v. Englewood Elev. R. Co., 223 III. 223, 79 N. E. 44 (eminent domain).
1906, Louisiana R. 8s N. Co. v. Morere, 116 La. 997, 41 So. 236 (land).
1906, St. Louis M. & S. E. R. Co. v. Continental B. Co., 198 Mo. 698, 96 S. W. 1011 /right
of way through a brickmaking plant).
1904, Riley v. Camden & T. R. Co., 70 N. J. L. 289, 57 Atl. 444 (shade-trees).
1909, Van Ness v. New York & N. J. T. Co., 78 N. J. L. 511, 74 Atl. 456 (a witness
who had bought and sold land in the town, held not qualified to testify to the damage
to the land done by cutting a shade tree, because " none of the land dealt in by the
witness had a single shade tree on it " ; this is amusing quibbling ; did any one ever
hear of a real estate dealer specializing in shade-tree lots or cedar-of-lebanon backyards ?
1905, Reed v. Pittsburg C. & W. R. Co., 210 Pa. 211, 59 Atl. 1067 (land).
1905, Union R. Co. v. Hunton, 114 Tenn. 609, 88 S. W. 182 (land).
1905, Watkins L. M. Co. v. Campbell, 98 Tex. 372, 84 S. W. 424 (land).
1905, Johnson v. Tacoma, 41 Wash. 51, 82 Pac. 1092 (realty benefits).
§ 715. Services-Value.
[Note 1; add:]
1905, Fuller v. Stevens, — Ala. — , 39 So. 623 (one testifying to the value of attorneys'
services need not know the special value of the plaintiff's attorney's services).
[Note 5 ; add :]
1905, Lawrence v. Methuen, 187 Mass. 592, 73 N. E. 860 (physician's services).
§ 716. Personal Property Value.
[Note 1; add:]
1906, Moss V. State, — Ala. — , 40 So. 340 (shoes). 1904, Southern R. Co. v. Morris, 143
Ala. 628, 42 So. 17 (mare).
1905, Withey v. Pere Marquette R. Co., 141 Mich. 412, 104 N. W. 773 (value of clothing,
etc., damaged in a railroad collision).
[Note 2; add:]
1906, Echols 1). State, 147 Ala. 700, 41 So. 298 (sundry goods stolen).
1906, Tubbs v. Mechanics' Ins. Co., 131 la. 217, 108 N. W. 324 (owner of a building, etc.).
1908, Jensen v. Palatine Ins. Co., 81 Nebr. 523, 116 N. W. 286 (stock of goods). 1909,
Anderson v. Chicago B. & O. R. Co., 84 Nebr. 311, 120 N. W. 1114 (crops and land).
1912, Needham v. Halverson, 22 N. D. 594, 135 N. W. 203 (horses).
1905, Union Pacific R. Co. v. Lucas, 136 Fed. 374, 69 C. C. A. 218 (land and buildings).
1907, Smith v. Mine & S. S. Co., 32 Utah 21, 88 Pac. 683 (household goods).
1906, Palmer v. Goldberg, 128 Wis. 103, 107 N. W. 478 (a farmler, held qualified as to the
value of his own horses).
Contra: 1905, Motton v. Smith, 27 R. I. 57, 62, 60 Atl. 681 (owner of jewelry, not shown
to have knowledge, excluded; but on rehearing the Court conceded that "an owner is
doubtless qualified to state the cost price of articles of personal property, and from that,
with information as to age and wear, the jury may estimate value. . . . We did not at-
tempt to lay down a general rule upon the subject").
Some uncertainty m'ay have been created in the modern rulings; by a misapprehension
of certain earlier ones, rendered while a party was still disqualified by interest, and dealing
with the question, then a living one {post, § 612, n. 4), whether a husband or wife of a party,
or a party generally, should be granted a special exception of necessity for testifying to the
contents and value of a package lost by a carrier ; e. g, 1860, Illinois C. R. Co. v. Taylor,
24 111. 323.
158
QUALIFICATIONS; KNOWLEDGE §728
[Note 3; add:]
1904, Pacific Mill Co. v. Enterprise Mill Co., 16 Haw. 282, 288 (mouldings, etc.).
1905, Gossage v. Phila. B. & W. R. Co., 101 Md. 698, 61 Atl. 692 (ship).
1909, Sullivan v. Girson, 39 Mont. 274, 102 Pac. 320 (diamond ring).
1905, Tucker v. Colonial F. Ins. Co., 58 W. Va. 30, 51 S. E. 86 (merchandise insured).
§ 717. Witness must know Market Value.
[Note 1; cdd:]
1877, Berg. v. Spink, 24 Minn. 138 (horses).
[Note 3; add':]
1904, Sylvester v. Ammons, 126 la. 140, 101 N. W. 782 (stock of goods).
§ 718. Knowledge of Value in the Vicinity.
[Note 1; add:]
1906, Walsh v. Board, 73 N. J. L. 643, 64 Atl. 1088 (a former owner of the land, not shown
to know values in the locality, held properly excluded).
1903, Lynch v. Troxell, 207 Pa. 162, 56 Atl. 413 (land).
§ 719. Knowledga of Value by Hearsay.
[NoU2; add:]
1903, Spohr v. Chicago, 206 111. 4^1, 69 N. E. 515 (here an expert testifying to the price of
land solely by having read the deed-recital of consideration was excluded).
1905, Fountain v. Wabash R. Co., 1 14 Mo. App. 676, 90 S. W. 393 (dealers in cattle, knowing
in part from perusal of trade-journals, admitted).
1912, Midland V. R. Co. v. Adkins, 36 Okl. 15, 127 Pac. 867 (testimony to market value,
based on talks with dealers and on newspaper quotations, admitted).
§ 720. Acquaintance with the Specific Object.
[Note 1; add:]
1905, Keeney v. Fargo, 14 N. D. 423, 105 N. W. 93 (rental).
1905, Hope V. Phila. & W. R. Co., 211 Pa. 401, 60 Atl. 996 (land).
[Note 2; add:]
1906, Harris v. Quincy O. & K. C. R. Co., 115 Mo. App. 527, 91 S. W. 1010 (cattle).
1909, Sullivan v. Gurson, 39 Mont. 274, 102 Pac. 320 (diamond ring converted ; a witness
who had seen it described its size, etc., and then a jeweler estimated its value).
§728. Recollection; Impression, Belief; Law in Various Jurisdictions.
[Note 1 ; add :]
1913, Trailer v. State, 8 Ala. App. 217, 63 So. 37 ("It seemed like a knife," allowed).
1905, Jordan v. State, 50 Fla. 94, 39 So. 155 (identity of a person "to the best of my judg-
ment").
1905, State v. Richards, 126 la. 497, 102 N. W. 439 (identity of a person).
1910, State v. Vanella, 40 Mont. 326, 106 Pac. 364 (identity inferred from voice).
1906, Gilliland v. Board, 141 N. C. 482, 54 S. E. 413 ("I think he always voted," admitted).
1913, Heflin v. Eastern R. Co., — Tex. Civ. App. — , 159 S. W. 499 ("impression" as to a
man's conduct when hurt).
159
§728 TESTIMONIAL QUALIFICATIONS
[Note 1 — continued]
1910, Herrick v. Holland, 83 Vt. 502, 77 Atl. 6 ("judgment" and "idea," admitted).
1912, State v. Elliott, 68 Wash. 603, 123 Pac. 1089 (identity of a person ; "best recollection,"
admitted).
§ 735. History of Past Recollection.
[Text, p. 827, 1. 2 of the quotation from Doe v. Perkins ;]
For " the book was in court," read : " the original was not in court."
[Text, p. 830 ; after the last quotation, add a note 1 :]
1 So also : 1906, Sanders, J., in State v. Legg, 59 W. Va. 315, 53 S. fi. 545.
[Note 3; oM:]
In Ontario, the Supreme Court has lately had to correct a trial judge.
1911, Fleming v. Toronto R. Co., 25 Ont. L. R. 317.
§ 736. History in Particular Jurisdictions.
[Notel; add:]
1905, Clark v. Union Traction Co., 210 Pa. 636, 60 Atl. 302 (obscure).
[Note 5; add:]
Ind. : 1905, Southern R. Co. v. State, 165 Ind. 613, 75 N. E. 272 (Johnson v. Culver ap-
proved; this is a virtual repudiation of the general doctrine, and is unsound).
Wis.: 1905, Manning v. School District, 124 Wis. 84, 102 N. W. 356 (sanctioned).
§ 738. New York Doctrine: Present Recollection must first appear to be
lacking.
[Nate 2; add:]
In Bacon v. Conroy (1909), 2d C. C. A., 172 Fed. 532, it is said that the "better practice"
requires the entries to be offered where the witness has no present recollection, and for this
is cited National Ulster Co. Bank v. Madden, supra, n. 1.
[Note 3; add:]
1913, Salo V. Duluth & I. R. Co., 121 Minn. 78, 140 N. W. 188 (telegram reciting facts
known to the witness, and already testified to by him, excluded, where his only failure of
memory was as to the date of the event, and he needed to refer to the telegram for this
purpose only ; no precedents are cited ; the opinion is apparently unaware that it is following
the peculiar and unsound New York doctrine, and does not consider the two prior conflicting
rulings in Minnesota above cited; it refers to the "confusion and disagreement in the
authorities," without realizing that there is no "confusion" on this point, and that the
issue is the simple one whether one or another plain rule will be adopted ; it loftily premises,
"We are content to leave the general discussion of these questions to the text- writers and
encyclopedists," but then proceeds to spend two pages on a "general discussion" which is
profitless in view of its complete ignoring of the prior state of the controversy).
§ 745. Recollection Must have been Fresh, etc.
[Note 1; add:]
1906, Murray & Peppers v. Dickens, 149 Ala. 240, 42 So. 1031 ("No precise time is fixed by
law").
160
QUALIFICATIONS; RECOLLECTION §747
[Note 1 — continued]
1903, Volusia Co. Bank v. Bigelow, 45 Fla. 638, 33 So. 704 ("at or about the time ... so
that it may be safely assumed that the recollection was then sufficiently fresh to correctly
express it").
§ 747. Witness must Guarantee Accuracy.
[Note 1; add:]
1907, Diamond Glue Co. ®. Wietzychowski, 227 111. 338, 81 N. E. 392. 1908/. Dorrance v.
Dearborn Power Co., 233 111. 354, 84 N. E. 269.
1911, Koehler v. Abey, 168 Mich. 113, 133 N. W. 923 (left to the trial Court).
1910, Terro v. Harwood, 15 N. Mex. 424, 110 Pac. 556.
1913, Marron v. Great Northern R. Co., — Or. — , 129 Pac. 1055 (under R«v. C. § 8020).
[Note 3 ; add, at the beginning :]
1906, St. Louis S. W. R. Co. v. White S. M. Co., 78 Ark. 1, 93 S. W. 58 (telegrapher's service-
marks).
1911, Koehler v. Abey, 168 Mich. 113, 133 N. W. 923 (routine duties of an inspector of
machinery).
[Note 5, par. 1 ; add, under Accord :]
1906, Franklin v. Atlanta & C. A. L. R. Co., 74 S. C. 332, 54 S. E. 578 (hospital record ; the
opinion is not very clear).
1904, Southern L. & T. Co. v. Benbow, 135 N. C. 303, 47 S. E. 435 (a certain signed letter,
excluded ; the opinion confuses this principle and that of § 2099, post).
[Note 6, par. 1, at the end; add:]
1906, Holden «. Prudential L. Ins. Co., 191 Mass. 153, 77 N. E. 309 (here a medical man's
writing of the answers to an insurance application was allowed to be used).
[Note 7, 1. 9 from the end ; add :]
and in First Nat'l Bank v. Yeoman, 14 Okl. 626, 78 Pac. 388 (1904).
[Note 8, par. 1 ; add :]
1906, Jones v. State, 147 Ala. 701, 41 So. 299 (account books).
1903, Peterson v. Mineral K. F. Co., 140 Cal. 624, 74 Pac. 162 (memorandum held not suffi-
ciently verified).
1905, Dryden v. Barnes, 101 Md. 346, 61 Atl. 342 (a list testified to by plaintiff, but made up
from prior lists by H. and by B., the plaintiff having no personal knowledge, excluded).
1905, Hoogewerff v. Flack, 101 Md. 371, 61 Atl. 184 (books offered through a clerk who did
not keep them nor know of the facts, excluded).
1906, State v. Trimble, 104 Md. 317, 64 Atl. 1026 (certain hospital records, proved by a
physician who did not make the entries, etc., excluded).
1905, AUwrlght v. Skillings, 188 Mass. 538, 74 N. E. 944, semhle (stock-exchange transactions) .
1913, Salo V. Duluth & I. R. Co., 121 Minn. 78, 140 N. W. 188 (telegram).
1908, Eberson v. Continental Ins. Co., 130 Mo. App. 296, 109 S. W. 62 (appraisal of stock of
goods).
1905, Rosenthal v. McGraw, 138 Fed. 721, 724, C. C. A. (a witness who did not make the
entries and did not know that they were correct, excluded).
1906, Grunberg v. U. S., 145 Fed. 81, 92, C. C. A. (invoices, etc.).
1904, Hart «. Godkin, 122 Wis. 646, 100 N. W. 1057 (rule applied).
In Conover v. Neher R. Co., 38 Wash. 172, 80 Pac. 281 (1905), a party's time-book was
excluded on the ground that the parties (corporate officers) themselves had testified and
"their knowledge was the primary evidence," citing no authority but a cyclopedia article;
' 161
§ 747 TESTIMONIAL QUALIFICATIONS
[Note 8 — continue(H
the ruling could not have been justified had the Court explicitly invoked the theory of
§ 1660, pod; but, as it stands, it merely confuses the law ; and the case of Mathes v. Robin-
son, later cited in the opinion on another point, is contra on this point.
§ 748. Witness need not be the Writer.
[Note 1 ; add, under par. 1 :]
1906, People v. Brown, 3 Cal. App. 178, 84 Pac. 670.
1906, Wood V. Holah, 79 Conn. 215, 64 Atl. 220 (Curtis v. Bradley applied; here excluding
the memorandum).
1905, McCarthy v. Meaney, 183 N. Y. 190, 76 N. E. 36 (certain memoranda not made nor
vertified by T., not allowed to be received as his testimony).
1913, Jenkins v. State, — Wyo. — , 134 Pac. 260 (stenographic notes made by another per-
son, but seen and verified by the witness freshly after the event; use allowed).
§ 749. Original required.
[Note 1, par. 1 ; addi]
1906, O'Brien v. U. S., 27 D. C. App. 263, 272 (bookkeeper's memorandum of total sums
represented in a document given to the defendant, admitted).
1904, Davis v. State, 47 Fla. 26, 36 So. 170 (approving Volusia Co. Bank v. Bigelow).
1904, Eatman v. State, 48 Fla. 21, 37 So. 576 (memorandum taken from a ledger, excluded).
1904, Chicago & E. I. R. Co. v. Zepp, 209 111. 339, 70 N. E. 623 (a Chicago weather-record
made by forming a book from letterpress copies of original sheets sent to Washington, ad-
mitted as an original ; the opinion ignores the further ground of admissibility, that the orig-
inal sheets, bging in another jurisdiction, weere unobtainable by subpoena, under the rule
of § 1213, post).
1904, Donner v. State, 72 Nebr. 263, 100 N. W. 305 (stockyards-book, not the original,
excluded).
1905, Manchester Assur. Co. v. Oregon R. & N. Co., 46 Or. 162, 79 Pac. 60 (engine inspec-
tion-book).
§ 751. Bookkeeper's Entry of Salesman's Oral Statement.
[Note 2, col. 1, under Accord; add:]
1906, Murray & Peppers v. Dickens, 149 Ala. 240, 42 So. 1031 ("It would seem, on reason,
that if one party testifies that he knew of the correctness of the item and gave it correctly
to the other, and the other testifies that he entered it as it was given to him, that that would
amount to the same thing as if the party who made the entry should swear that he knew of
the correctness of the item" ; applied to a time-book ; the opinion cites an encyclopedia of
law, but does not notice the recent ruling in this Court to the contrary, Snow H. Co. v.
Loveman, infra).
1907, Furiong & Meloy v. North British & M. Ins. Co., 136 la. 468, 113 N. W. 1084 (inven-
tory of burnt stock, made by two persons testifying).
1909, Buck V. Brady, 110 Md. 568, 73 Atl. 277 (memorandum of a rabies investigation made
in part by each of three doctors, used on their joint testimony.
1906, Pettey v. Benoit, 193 Mass. 233, 79 N. E. 245 (books of account verified by the plaintiff
and his clerks, admitted; citing K^nt v. Garvin, supra).
1913, The City of St. Joseph, 8th C. C. A., 205 Fed. 284 (foremen making entries on slates
or memoranda, and bookkeeper's transcribing them; both sets of men testifying, the
accounts were admitted).
1912, Lawn v. Prager, 67 Wash. 568, 121 Pac. 466 (building contractor's time-books, proved
by the foreman who made the slips and the defendant who copied them, admitted).
162
QUALIFICATIONS; RECOLLECTION §759
§ 754. Memorandum goes as Testimony to the Jury,
[Noiel; add:]
1905, Alabama G. S. R. Co. v. Clarke, 145 Ala. 459, 39 So. 816.
1910, Birmingham R. L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241 ("The true rule . . .
is laid down in the case of Acklen v. Hickman").
1904, State v. McGruder, 125 la. 741, 101 N. W. 646.
1908, Atherton «. Emerson, 199 Mass. 199, 85 N. E. 530 (doctrine applied). 1908, Cumber-
land G. M. Co. V. Atteaux, 199 Mass. 426, 85 N. E. 536, semble.
1909, Farrell v. Haze, 157 Mich. 374, 122 N. W. 197 (not decided). 1911, Koehler v. Abey,
168 Mich. 113, 133 N. W. 923. 1912, Johnson v. Union Carbide Co., 169 Mich. 651, 134
N. W. 1079.
1910, Terr. v. Harwood, 15 N. Mex. 424, 110 Pac. 556 (whether it may be handed to the' jury,
or simply read, not decided).
1904, First Nat'l Bank v. Yeoman, 14 Okl. 626, 78 Pac. 388.
1905, Manning v. School District, 124 Wis. 84, 102 N. W. 356 ("may be put in evidence")-
[Note 5; add:]
D. C. : 1908, Sechrist v. Atkinson, 31 D. C. App. 1 (not decided).
Mass. : 1906, Holden v. Prudential L. Ins. Co., 191 Mass. 153, 77 N. E. 309 <here the Court
is still unappreciative of the true nature of the process ; the memorandum is said to be
"plainly inadmissible," but the witness may "use it to aid him in testifying").
U. S. : 1906, Grunberg v. U. S., 145 Fed. 81, 96 (again the subject is confused by ignoring
the two kinds of memoranda.).
§ 759. Present Recollection ; Writing not made by Witness.
[Note 1, par. 1 ; add, under Accord:]
1914, Riley v. Fletcher, — Ala. — , 64 So. 85 (bill of exceptions from former trial).
1905, Shrouder v. State, 121 Ga. 615, 49 S. E. 702 (record of mortgages).
1911, Federal U. Surety Co. v. Indiana L. & M. Co., 176 Ind. 328, 95 N. E. 1104 (lumber
hauler allowed to refresh from a delivery-slip not made out by him).
1906, Fay v. Walsh, 190 Mass. 374, 77 N. E. 44.
1904, Taft V. Little, 178 N. Y. 127, 70 N. E. 211 (R. allowed to testify from a memorandum
made by R.'s bookkeeper).
[Note, par. 3 ; add :]
1907, Hill V. Adams Express Co., 74 N. J. L. 338, 68 Atl. 94 (distinction of two kinds of
refreshing, ignored). '
1914, State SI. Patton, — Mo.— ,164 S. W. 223 ("the Missouri rule is . . . against the rule
lu'ged by Wigmore's Greenleaf, 16th ed., § 439c; where it is said that the memory of the
witness may be refreshed by any paper, whether the same is known by the witness to be
correct or not ; this view of Mr. W. has been followed by our St. Louis Court of Appeals,
Eberson v. Investment Co., 130 Mo. App. 308 ; we do not find this statement of the learned
author and of the Court of Appeals to be borne out either by the cases which he cites to
support it, or by the great weight of the authorities which we have examined"; now we
do not know how faithful or how competent was the private secretary who looked up the
learned opinion-writer's citations ; but from the misquotation of the above passage from
Greenleaf it is easy to infer other carelessness somewhere ; the fact is that no authorities
are died in thg Greenleaf passage in support of the above phrased statement ; the passage
reads : "That the paper was not written by tJie witness himself is no objection," and then a
Note 1 cites twenty-one authorities m support of that statement; these authorities do
support it, except that one is not verifiable, being miscited by volume or page, and is
therefore out of question, and one is capable of being misunderstood ; then tiie text con-
163
§759 TESTIMONIAL QUALIFICATIONS
[Note, par. 3 — continued]
"tinues, "and it is therefore incorrect (confusing this with the preceding subject) to require
that the paper be one written by the witness or under his direction or known by him to be
/correct," and then a Note 2 cites four authorities as examples of a requirement indeed so
made, but incorrectly so made ; it is likely that a hasty perusal imagined that these
authorities were cited as supporting the doctrine approved in the text.
[Note 2; add:]
1905, State v. Teachey, 138 N. C. 587, 50 S. E. 232 (dying declarant's affidavit, used by an
auditor).
§ 760. Writing not Original.
[Note 1 ; add, under Accord:]
1904, Davis v. State, 47 Fla. 26, 36 So. 170 (witness allowed to refer to a copy of stenographic
notes, made after adjournment ; approving Volusia Co. Bank ». Bigelow, cited ante, § 749,
n. 1).
1912, Erdman v. State, 90 Nebr. 642, 134 N. W. 258 (newspaper).
1904, Taft D. Little, 178 N. Y. 127, 70 N. E. 211 (R. allowed to testify from memoranda
made by his bookkeeper from books made up from data furnished by R.'s foreman).
§ 761. Writing not made at the Time, etc.
[Note 4:-, add:]
1904, State «. Aspara, 113 La. 940, 37 So. 883 (stenographic report of former testimony).
1904, Portsmouth St. R. Co. v. Feed's Adm'r, 102 Va. 662, 47 S. E. 850.
§ 762. Writing Shown to the Opponent.
[Note 2; add:]
1908, Harman v. Illinois & E. Coal Co., 237 111. 36, 86 N. E. 625.
1907, Morris v. U. S., — C. C. A. — , 149 Fed. 123.
[Noteb, 1.4; add:]
Accord: 1906, Lowrie v. Taylor, 27 D. C. App. 522, 526, semble (here the production of the
book was not demanded).
€lontra: 1912, State v. Kwiatkowski, 83 N. J. L. 650, 85 Atl. 209 (here the precise point was
not raised). 1903, Loose v. State, 120 Wis. 115, 97 N. W. 526 (but the Court may require
production).
§ 763. Writing is not Part of Testimony.
[Note 1; add:]
1910, Pace v. Louisville & N. R. Co., 166 Ala. 519, 52 So. 52. 1914, Riley v. Fletcher, —
Ala. — , 64 So. 85 (affirming Acklen ». Hickman).
1908, Sechrist v. Atkinson, 31 D. C. App. 1.
1911, Mattison v. Mattison, 203 N. Y. 79, 96 N. E. 359 (hotel register, not admitted).
1906, State v. Legg, 59 W. Va. 315, 53 S. E. 545 (reading aloud to a witness his former
testimony ; this seems strain,ed, for the reading aloud was merely a mode of questioning him
to stimulate recollection, and not an offering of the paper in evidence).
[Note 2; add:]
1913, Bruder v. State, — Ark. — , 161 S. W. 1067 (trial Court's refusal to submit to the
jury, held here not improper).
1905, Logan v. Freerks, 14 N. D. 127. 103 N. W. 426.
164
■QUALIFICATIONS; COMMUNICATION §774
§ 764. Cross-Examiner's Use of Writing to revive Recollection.
[Note 2; add:]
1914, Hutchinson v. Plant, — Mass. — , 105 N. E. 1017 (not decided).
§ 770. Leading Questions; Trial Court's Discretion.
[Note 2, par. 1, add:]
1907, Midland V. R. Co. v. Hamilton, 84 Ark. 81, 104 S. W. 540.
1904, Schley v. State, 48 Fla. 53, 37 So. 518. 1905, Reyes v. State, 49 Fla. 17, 38 So. 257.
1904, O'Dell V. State, 120 Ga. 152, 47 S. E. 577. 1904, Holmes v. Clisby, 121 Ga. 241, 48
S. E. 934. 1905, Phinazee v. Bunn, 123 Ga. 230, 51 S. E. 300. 1908, Moore v. State, 130
Ga. 322, 60 S. E. 544.
1906, State v. Simes, 12 Ida. 310, 85 Pac. 914.
1909, Peebles v. O'Gara Coal Co., 239 III. 370, 88 N. E. 166.
1908, Knickerbocker Ice Co. v. Gray, 171 Ind. 395, 84 N. E. 341.
1904, State «. Robinson, 126 la. 69, 101 N. W. 634. 1905, State v. Drake, 128 la. 539, 105
N. .W. 54.
1905, State v. Miller, 71 Kan. 200, 80 Pac. 51.
1908, Baltimore & O. R. Co. v. State, 107 Md. 642, 69 Atl. 439.
1906, Gray v. Kelley, 190 Mass. 184, 76 N. E. 724. 1914, Com. v. Dorr, 216 Mass. 314, 103
N. E. 902.
1904, Woodruff v. State, 72 Nebr. 815, 101 N. W. 1114.
1906, Luckenback v. Sciple, 72 N. J. L. 476, 63 Atl. 244.
1905, State v. Hazletf, 14 N. D. 490, 105 N. W. 617. 1910, State v. Fujita, 20 N. D. 555,
129 N. W. 360.
1904, Koon v. Southern Ry., 69 S. ClOl, 48 S. E. 86.
1905, State v. Cambron, 20 S. D. 282, 105 N. W. 241.
1904, Lane v. Bauserman, 103 Va. 146, 48 S. E. 857.
1909, Berry v. Doolittle, 82 Vt. 471, 74 Atl. 97.
1904, Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311.
§ 772. Question calling for Answer " Yes " or " No."
[Note 1; add:]
1907, Walker v. Baldwin, 106 Md. 619, 68 Atl. 25.
[Note 3; add:]
1906, Hix V. GuUey, 124 Ga. 547, 52 S. E. 890 (good example).
1909, Peebles v. O'Gara Coal Co., 239 111. 370, 88 N. E. 166.
1905, State «. Taylor, 57 W. Va. 228, 50 S. E. 247.
[Text, p. 866; at the end of par. (1), add a new note 2a :]
2" 1913, Ganow v. Ashton, — S. D. — , 143 N. W. 383 (approving the above rule).
§ 773. Opponent's Witness under Cross-Examination.
[Note 1, par. 1; add:]
1906, Lauchheimer v. Jacobs, 126 Ga. 261, 55 S. E. 55 (in discretion).
§ 774. Witness Hostile, Biassed, or Unwilling.
[Note 1; add:]
1907, State v. Walker, 133 la. 489, 110 N. W. 925.
1907, People v. Sexton, 187 N. Y. 495, 80 N. E. 396 (the opponent's wife and daughter).
1912, Hollywood v. State, 19 Wyo. 493, 120 Pac. 471.
165
§778 TESTIMONIAL QUALIFICATIONS
§ 778. Witness not Understanding, etc.
[Note 1; add:]
1913, Maves v. Grand Trunk P. R. Co., Alta. S. C, 14 D. L. R. 70 (elaborate opinion by
Beck, J.).
[I^oteS; add:]
1906, State v. Simes, 12 Ida. 310, 85 Pac. 914 (simple-minded woman, in rape).
1903, Campion v. Lattimer, 70 Nebr. 245, 97 N. W. 290 (a person ignorant and dull).
So also the reticence of shame or modesty:
1910, State v. Dudley, 147 la. 645, 126 N. W. 812 (rape).
§ 779. Proving a Contradiction.
[Note 1 ; add, under Accord:]
1910, Sheridan Coal Co. v. Hull Co., 87 Nebr. 117, 127 N. W. 218.
§ 780. Misleading Questions by Cross- Examiner.
[Note 2; add:]
1905, Briggs v. People, 219 111. 330, 76 N. E. 499 (rule illustrated).
1905, State v. Boice, 114 La. 856, 38 So. 584.
§ 781. Intimidating Questions.
[Note 4; add:]
1904, Cleveland, P. & E. R. Co v. Pritschau, 69 Oh. 438, 69 N. E. 662.
§ 782. Repetition of Questions.
[Note 2; add:]
1905, Braham v. State, 143 Ala. 28, 38 So. 919.
1904, Thomas v. State, 47 Fla. 99, 36 So. 161 (excluded).
1911, Smith V. Boston Elevated R. Co., 208 Mass. 186, 94 N.,E. 315.
{Notei; add:]
1903, Spohr v. Chicago, 206 111. 441, 69 N. E. 515.
1912, People v. Lustig, 206 N. Y. 162, 99 N. E. 183 (above passage quoted and applied).
So, too, the cross-examination questions may, in discretion, be repeated on re-direct
examinaiion: 1904, Caven v. Bodwell G. Co., 99 Me. 278, 59 Atl. 285; and cases cited
post, § 1896.
[Note 5; add:]
1909, Math v. Chicago City R. Co., 243 111. 114, 90 N. E. 235 (a misapplication of this
rule with several others).
§ 783. Multiple Examiners, etc.
[Note 1 ; add:]
1906, State v. Nugent, 116 La. 99, 40 So. 581 (two defendants and three counsel ; only one
allowed to examine the same witness).
[Note 2; add:]
1908, Jackson v. Tribble, 156 Ala. 480, 47 So. 310.
166
QUALIFICATIONS; COMMUNICATION §785
[Note 5; add:]
1906, Barnes v. Squier, — Mass. — , 78 N. E. 731 (similar to Munro v. Stowe). '
1914, People v. Becker, 210 N. Y. 274, 104 N. E. 396 (murder ; the principal witness for the
prosecution was examined in chief from 10 a.m. till 2.30 p.m., the lunch period intervening,
and was then cross-examined until 8.50 p.m., the day being Saturday of a week's trial;
a refusal to adjourn the further cross-examination until Monday was held error on the
facts, though later in the next week the cross-examiner declined further cross-examination
of the witness when tendered for the purpose; this seems unsound; Werner, J., diss.).
§ 784. Questions by the Judge.
[Note 1, par. 1, p. 884; change the number to note 5; and add:]
1888, Sharp v. State, 51 Ark. 147, 154, 10 S. W. 228 ("The judge has the right in a criminal
prosecution to interrogate the witnesses; but he has no right to usurp the place of the
State's attorney").
1905, Arkansas C. R. Co. v. Craig, 76 Ark. 258, 88 S. W. 878 (quoting the above passage).
1905, Grant v. State, 122 Ga. 740, 50 S. E. 946.
1905, O'Shea v. People, 218 III. 352, 75 N. E. 981 (the proper course for a judge in cross-
examining witnesses, defined).
1898, Dunn v. People, 172 111. 582, 50 N. E. 137 (but giving feeble sanction to such questions
by the judge).
1911, State V. Keehn, 85 Kan. 765, 118 Pac. 851.
1907, Terr. v. Meredith, 14 N. M. 288, 91 Pac. 731.
1904, Eckhout v. Cole, 135 N. C. 583, 47 S. E. 655 (good opinion, by Connor, J.).
1905, State v. Hazlett, 14 N. D. 490, 105 N. W. 617.
1905, Howard v. Terr., 15 Okl. 199, 79 Pac. 773 (good opinion, by Burwell, J. ; DeFord
V. Painter not cited).
1906, Komp V. State, 129 Wis. 20, 108 N. W. 46.
Mr. (Assistant District Attorney) Arthur Train, in his book "The Prisoner at the Bar"
(1906), pp. 181, 182, has some valuable comments.
And now see the able and powerful vindication of the judicial function, by Burch, J.,
in State v. Keehn, 85 Kan. 765, 118 Pac. 851 (1911).
[In the same Note 1 (5), add in par. 2 :]
1909, Flint v. Stockdale's Estate, 157 Mich. 593, 122 N. W. 279 (an example of improper
treatment of the trial judge).
§ 785. Continuous Narration ; Responsive Answers.
[Note 2; add:]
1905, Horton v. State, 123 Ga. 145, 51 S. E. 287 ("The practice [of continuous narrative]
is to be commended rather than condemned").
1907, Hendricks v. St. Louis Transit Co., 124 Mo. App. 157, 101 S. W. 675.
1909, Pumphrey v. State, 84 Nebr. 636, 122 N. W. 19 (trial Court's discretion).
[Note 4; add:]
Contra, for a party answering interrogatories : 1909, Carwille v. Franklin, 164 Ala. 543,
51 So. 396. _ '
This topic of responsiveness is beset with crude misunderstandings, that tend to sup-
press truth and turn the inquiry into a logomachy :
Sometimes it is said that the party questioning may object on this ground, but not the
opposing party. '
1906, Dunahugh's Will, 130 la. 692, 107 N. W. 925. There should be no such distinction;
167
§785 TESTIMONIAL QUALIFICATIONS
[Note 4 — continued] <
if the answer gives an admissible fact, it is receivable, whether the question covered it or
not. No party is owner of facts in his private right. No party can impose silence on the
witness called by Justice.
That a party waives objection to a responsive answer, by the very asking of the question,
is noticed ante, § 18, n. 27.
That an opponent is entitled to the striking out of an answer which is non-responsive
and inadmissible, is noticed ante,^ 18, n. la; but this is merely a rule excusing him from
not having objected before the answer.
Coiu^s ought to cease repeating the novel and unwholesome assertion that "where an
answer is not responsive to the question put, it is the duty of the Coifft to strike it out,
on motion." (Math v. Chicago C. R. Co., 253 111. 114, 90 N. E. 235, 1909.)
§ 786. Improper Suggestion other than by Questions.
[Note 5; add:]
1906, State v. Goodson, 116 La. 388, 40 So. 771 (co-defendants not allowed as of right to
consult a co-indictee in jail and about to be used as a witness for the State).
1906, State v. Barker, 43 Wash. 69, 86 Pac. 387 (exchange of signals between witness and
attorney, held improper).
[Note 6; add:]
But a stricter rule now obtains in England :
1910, Dickman's Case, 5 Cr. App. 135 ("If we thought in any case that justice depended
upon the independent identification of the person charged, and that the identification ap-
peared to have been induced by some suggestion or other means, we should not hesitate
to quash any conviction that followed").
§ 788. Prior Conference with Attorney.
[Note 1, par. 1; add:]
1911, State s. Papa, 32 R. I. 453, 80 Atl. 12 (the defendant's counsel has a right to inter-
view witnesses already summoned by the State).
The following ruling is unsound :
1909, Eads v. State, 17 Wyo. 490, 101 Pac. 946 (questions seeking to clear away an infer-
ence of counsel's suggestion in conference with a witness, excluded).
§ 789. Dramatic Communication.
[Note 2, par. 1 ; add:]
1905, Turner v. Com., — Ky. — , 89 S. W. 482 (putting on a vest worn by one of the parties,
to illustrate an affray).
1912, Hutchinson v. Richmond S. G. Co., 247 Mo. 71, 152 S. W. 52 ("Look out, below 1"
repeated by witness with loudness, to show the nature of a warning given) „
The following statutes belong here :
Alta. St. 1910, 2d sess., Evidence Act, c. 3, § 18 (quoted post, § 811, n. 3).
Sask. St. 1907, Evidence Act, § 33 (quoted post, § 811, n. 3).
1904, Clark v. Brooklyn H. R. Co., 177 N. Y. 357, 69 N. E. 647 (plaintiff-witness' illustra-
tion of his nervous affection caused by the injury, held doubtful, as being "under the sole
control of the witness himself" ; here not improper in discretion).
[Note 3, par. 1 ; add :]
1905, Birmingham R. L. & P. Co. v. Rutledge, 142 Ala. 195, 39 So. 338 (personal injury ;
the plaintiff allowed to "walk the best he could before the jury").
168
QUALIFICATIONS; COMMUNICATION §791
[Note 3 — contirvued]
1904, Plunkett v. State, 72 Ark. 409, 82 S. W. 845 (rape under age; the prosecutrix testify-
ing with the babe in her lap, held not erroneous).
1904, Blanchard v. Holyoke St. R. Co., 186 Mass. 582, 72 N. E. 94 (a motion to permit
the plaintiff in a personal injury suit to testify while reclining on a stretcher, held not im-
properly denied on the facts, in the trial Court's discretion).
1906, State v. Barrick, — W. Va. — , 55 S. E. 652 (rape ; that the prosecutrix testified while
lying ill on a cot, held not improper).
§ 790. Models, Maps, Photographs; General Principle.
[Text, p. 893, 1. 10 from below; add a new note la after "nothing."]
^^ Quoted with approval in Northern Pacific R. Co. v. Alderson, C. C. A., 199 Fed. 735
(1912).
§ 791. Instances of Models, MapS) and Diagrams.
[Note 1, par. 1 ; add :]
1906, Hisler v. State, 52 Fla. 30, 42 So. 692 (map of location of homicide).
1913, Reinke v. Sanitary District, 260 111. 380, 103 N. E. 236 (graphic summaries of sta-
tistics).
1904, State v. Ryno, 68 Kan. 348, 74 Pac. 1114 (handwriting; cited post, § 797, n. 4).
1910, Strasser v. Stabeck, 112 Minn. 90, 127 N. W. 384 (plat of the place of a colUsion).
1905, Carman v. Montana C. R. Co., 32 Mont. 137, 79 Pac. 690.
1908, People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690 (knife used as a model).
1906, Bullard v. Hollingsworth, 140 N. C. 634, 53 S. E. 441 (map and plat of bounda-
ries).
1908, Higgs V. Minneapohs, St. P. & S. S. M. R. Co., 16 N. D. 446, 114 N. W. 722 (hay and
grass burnt).
1912, Hughes v. State, 126 Tenn. 40, 148 S. W. 543 (room of a homicide, rearranged to
show the scene).
^ [Notel,pa,T.2; add:]
1906, People v. Maughs, 149 Cal. 253, 86 Pac. 187 (murder; model of the part of the
house, admitted).
1905, Chicago & A. R. Co. v. Walker, 217 111. 605, 75 N. E. 520 (skeleton of a foot, used
to explain an injury).
[Text; at the end, (kW :]
(4) A map, model, or diagram, though made out of court, is nevertheless
subject to cross-examination through the witness who verifies and uses it.
Hence the objection based on the Hearsay rule, that it is prepared ex parte,
is entirely unsound {post, § 1385).
[Note 2; add:]
So also : 1911, Napier v. Little, 137 Ga. 242, 73 S. E. 3 : "The map of a county surveyor,
while not evidence, under the circumstances of this case, is admissible to go to the jury as
a mere diagram to illustrate other testimony." Under this convenient but insidious term
"illustrate," it is easy to re-classify almost any kind of evidence. Courts often fail to per-
ceive that a diagram, map, or photograph is always somebody's say-so, and that therefore
some explanation is always due of why that somebody is not in cburt to verify his graphic
statement.
169
§ 792 TESTIMONIAL QUALIFICATIONS
§ 792. Instances of Photographs.
[Note 1 ; add :]
1905, Russell v. State, — Ala. — , 38 So. 291 (person of the defendants).
1906, Kansas C. S. R. Co. v. Morris, 80 Ark. 528, 98 S. W. 363 (railroad injury).
1907, People v. Grill, 151 Cal. 592, 91 Pac. 515 (place of homicide).
1905, People v. Mahatch, 148 Cal. 200, 82 Pac. 779 (locality of homicide, showing the posi-
tion of body, knife, hat, etc., as re-arranged by a witness who testified to the correct placing).
1906, People v. Maughs, 149 Cal. 253, 86 Pac. 187 (murder; photograph of a person in the
supposed position of the deceased, excluded).
1913, Moffitt V. Connecticut Co., 86 Conn. 527, 86 Atl. 16 (street-car injury).
1904, Shaffer v. U. S., 24 D. C. App. 417, 424 (accused),
1904, MacFeat v. Phila. W. & B. R. Co., 5 Pen. Del. 52, 62 Atl. 898 (scene of a railroad
accident).
1905, State v. Powell, 5 Pen. Del. 24, 61 Atl. 966 (wounds on the deceased).
1-905, Chicago & E. I. R. Co. v. Crose, 214 111. 602, 73 N. E. 865 (railroad accident at a
crossing; photographs taken twelve months afterward, excluded).
1906, Chicago k S. L. R. Co. v. Kline, 220 111. 334, 77 N. E. 229 (eminent domain; photo-
graphs of adjoining estates, excluded, as offered merely in evasion of the rule of proof of
value).
1905, Considine v. Dubuque, 126 la. 283, 102 N. W. 102 (footpath).
1905, Ottawa v. Green, 72 Kan. 214, 83 Pac. 616 (sidewalk).
1908, Louisville & N. R. Co. «. Brown, 127 Ky. 732, 106 S. W. 795 (railway wreckage).
1911', Bowling Green G. Co. v. Dean's Ex'x, 142 Ky. 678, 134 S. W. 1115 (photograph of a
lineman on a telegraph pole, the scene being reproduced by other persons, and duly veri-
fied, admitted).
1904, Stone «. L. B. & B. St. R. Co., 99 Me. 243, 59 Atl. 56 (photograph of the scene of
a railroad injury, excluded in discretion).
1904, Babb v. Oxford P. Co., 99 Me. 298, 59 Atl. 290 (photograph of a coal conveyer, held
not improperly excluded in the trial Court's discretion).
1904, Martin v. Moore, 99 Md. 41, 57 Atl. 671 (battery; photograph of the plaintiff on the
day of the battery, excluded for lack of verification).
1912, Maryland El. R. Co. v. Beasley, 117 Md. 270, 83 Atl. 157 (place of an accident ; photo-
graphs in winter, the accident occurring in June, held not improperly admitted in discretion).
, 1904, Com. ». Fielding, 184 Mass. 484, 69 N. E. 216 (arson).
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (murder ; photograph of the deceased's
corsets, taken six months before trial, held properly admitted in the trial Court's discretion,
though the corsets were in court ; photograph of pieces of a knife-blade, admitted, to aid
testimony, though the pieces were in court).
1908, Com V. Johnson, 199 Mass. 55, 85 N. E. 188 (photograph of defendant, from the
rogues' gallery and indorsed with his police history, admitted on the facts).
1905, Ness v. Escanaba, 142 Mich. 404, 105 N. W. 879 (sidewalk; excluded on the facts).
1907, Davis v. Adrian, 147 Mich. 300, 110 N. W. 1084 (personal injury).
1909, Harrison v. Green, 157 Mich. 690, 122 N. W. 205 (photograph of machinery with
persons placed as at the time of the injury, admitted).
1908, Brett v. State, 94 Miss. 669, 47 So. 781 (photograph of the scene of a murder repro-
duced by posing the parties ; excluded, because misleading).
1909, Riggs V. Metropolitan St. R. Co., 216 Mo. 304, 115 S. W. 969 (position of plaintiff
when run over ; photographs of an artificially re-constructed scene, excluded because the
similarity of conditions was not sufficiently shown).
1905, State v. Roberts, 28 Nev. 350, 82 Pac. 100 (of a deceased, showing his wounds).
1910, Turner v. Cocheco Mfg. Co., 75 N. H. 521, 77 Atl. 999 (mill ; discretion of trial Court).
1913, State v. Strong, 83 N. J. L. 177, 83 Atl. 506 (photograph of the place of a murder,
taken later, without specifying the changes that had taken place, excluded).
170
QUALIFICATIONS; COMMUNICATION §794
[Note 1 — continued]
1904, Smith v. Lehigh Valley R. Co., 177 N. Y. 379, 69 N. E. 729 (action for death; photo-
graph of deceased excluded, her appearance being immaterial).
1904, Davis v. Seaboard A. L. Ry., 136 N. C. 115, 48 S. E. 591 (injured person).
1910, Pickett v. Atlantic C. L. R. Co., 153 N. C. 148, 69 S. E. 8 (land flooded).
1912, Sherlock v. MinneapoUs, St. P. & S. S. M. R. Co., 24 N. D. 40, 138 N. W. 976 (rail-
way track).
1912, Cincinnati, H. & D. R. Co. v. De Onzo, 87 Oh. 109, 100 N. E. 320 (legs of a plaintiff
before injury; photographs received).
1903, State v. Miller, 43 Or. 325, 74 Pac. 658 (of deceased, showing wounds, excluded, on
the principle of § 1158, pod).
1904, Maynard v. Oregon R. & N. Co., 46 Or. 15, 78 Pac. 983 (railway wreck).
1909, State v. Finch, 54 Or. 482, 103 Pac. 505 (of deceased, admitted).
1909, Buck V. McKeesport, 223 Pa. 211, 72 Atl. 514 (photograph of a highway, held mis-
leading on the facts).
1911, Curtis V. N. Y. N. H. & H. R. Co., 32 R. I. 542, 80 Atl. 127 (place of railroad acci-
dent).
1906, Newcomb v. State, 49 Tex. Cr. 550, 95 S. W. 1048 (room of a homicide ; excluded,
because the position of furniture was not the same).
1905, Toledo Traction Co. v. Cameron, 137 Fed. 48, 66, 69 C. C. A. 28 (plaintifif's injured
leg).
1906, Porter v. Buckley, 147 Fed. 140, C. C. A. (automobile accident ; photographs of the
locality, taken more than a year afterwards, excluded).
1907, Foss V. Smith, 79 Vt. 434, 65 Atl. 553 (exchange of furniture for tools, etc. ; a photo-
graph of the furniture held not improperly excluded, the appearance not being important
in evidencing value). '
1906, Hupfer v. National Dist. Co., 127 Wis. 306, 106 N. W. 831 (vat-hoops).
§ 794. Anonymous Pictures ; Personal Knowledge, etc.
[Note 3; add:]
1909, Sellers v. State, 91 Ark. 175, 120 S. W. 840 (murder ; photograph of a reproduction of
the actors, excluded, because not verified as to the positions, etc.).
1905, People v. Mahatch, 148 Cal. 200, 82 Pac. 779 (cited ante, § 792, n. 1).
1912, State v. Baker, — la. — , 135 N. W. 1097 (pointing out that the photographer may
identify places in th^ picture by referring to the alleged facts).
1909, ConsoUdated G. E. L. & P. Co. v. State, 109 Md. 186, 72 Atl. 651.
1909, Morris v. Terr., 1 Okl. Cr. 617, 99 Pac. 760 (premises of a homicide).
[Note 4: ; add:]
1909, Hassam v. Safford L. Co., 82 Vt. 444, 74 Atl. 197 ("the sufficiency of the verification
... is ordinarily not reviewable").
[Note 5, par. 1; add:]
1911, Napier v. Little, 137 Ga. 242, 73 S. E. 3 (map).
1907, State v. Remington, 50 Or. 99, 91 Pac. 473 (map made by county surveyor, with a
legend, verified by one who had visited the spot).
1904, Koon v. Southern Ry., 69 S. C. 101, 48 S. E. 86 (drawing of a pile-driver).
[Note 5, par. 2; add:]
1914, State v. Jones, — Cal. — , 139 Pac. 441 (identification of a person).
1907^ McKarren v. Boston & N. St. R. Co., 194 Mass. 179, 80 N. E. 477 (plaintiff's spinal
vertebra; verification by the physician present and directing the photographer, held
sufficient).
171
§794 TESTIMONIAL QUALIFICATIONS
[Note 5 — continued]
1912, Hughes v. State, 126 Tenn. 40, 148 S. W. 543.
1904, Hebbe v. Maple Creek, 121 Wis. 668, 99 N. W. 442 (witness need not have been pres-
ent at the photographing).
§ 795. Vacuum-Ray Photographs, etc.
[NoU2; add:]
1912, Alexander v. Blackburn, 178 Ind. 66, 98 N. E. 711 (magnifying glass for signatures).
For the use of other scientific or professional instruments of calculation, registration, etc.
see ante, § 665.
{Note 4 ; add :]
1904, Miller v. Minturn, 73 Ark. 183, 83 S. W. 918 (malpractice; radiograph of the injured
ankle, taken by an expert, admitted).
1914, Prescott & N. W. R. Co. t. Franks, — Ark. — 163 S. W. 180 (bodily wound; ad-
mitted).
1911, Kimball v. Northern Electric Co., 159 Cal. 225, 113 Pac. 154 (knee).
1907, Elzig 71. Bales, 135 la. 208, 112 N. W. 540 (a doctor's testimony based on an un-
authenticated X-ray photograph, excluded).
1904, Chicago & J. El. Co. v. Spence, 213 111. 220, 72 N. E. 796 (X-ray skiograph of the
plaintiff's body received, after preliminary evidence of correctness of method).
1907; Chicago City R. Co. v. Smith, 226 111. 178, 80 N. E. 716 (personal injury; certain
X-ray photographs held properly introduced).
1912, Colesar v. Star Coal Co., 255 111. 532, 99 N. D. 709 (X-ray photograph of stone in
kidney, held on the facts inadmissible because "unintelligible to the jury").
1905, State t. Matheson, 130 la. 440, 103 N. W. 137 (X-ray radiograph of a bullet, taken
by an expert and verified by him, admitted).
1910, Dean v. Wabash R! Co., 229 Mo. 425, 129 S. W. 953 (X-ray photographs of a bone,
admitted).
1907, Sheldon v. Wright, 80 Vt. 298, 67 Atl. 807 (X-ray picture of an injured leg, admitted).
[Text, p. 903, par (4), at the end ; add:]
The dictograph falls under the principle of the telephone.
[Text, p. 903, par. (5), at the end ; add a new note 5 :]
' The use of the phonograph is legitimate, on the same principle :
1905, -Loring v. Boston Elev. R. Co., Superior Court of Suffolk Co., Mass., Boston Tran-
script, Dec. 12 (damage by noise ; Wait, J., allowed the use of phonograph records, to show
the noise made by the defendant's trains).
1906, Boyne C. G. & A. R. Co. v. Anderson, 146 Mich. 328, 109 N. W. 429 (eminent domain ;
"a phonograph was permitted to be operated in presence of the jury to reproduce sounds
claimed to have been made by the operation of trains in proximity to respondent's hotel").
[Text, par. (6), at the end ; add a new note 6 :]
« Not decided: 1906, Boles v. People, 37 Colo. 41, 86 Pac. 1030 (spiritualistic communi-
cation as to a murderer).
§ 797. Photographs of Handwriting.
[Note A; add:]
1910, Estate of Vines, Prob. 147 (will in India proved by a photograph of the will, with
affidavit of the attesting witness).
172
QUALIFICATIONS; COMMUNICATION §803
[Note 4 — continued]
1908, M'CuUough v. Munn, 2 Ir. R. 194 (photograph of a lost libelous letter alleged to
have been written by defendant but denied by him; whether the photograph could be
compared with admitted specimens, not decided ; a doubt which was perversely unnec-
essary).
1913, Hayes' Estate, — Colo. — , 135 Pac. 449 (testimony by deposition to a will's hand-
writing, based on photographic copies duly verified, held admissible).
la. St. 1913, c. 296, p. 307, Apr. 19 (amending Code § 4623, by adding subdiv. 5 ; where
depositions are taken and refer to books of account, the books may be photographically
copied and the copy attached).
1906, McClellan's Estate, 20 S. D. 498, 107 N. W. 681 (inheritance ; photographic repro-
ductions of enlistment papers on record at barracks in Ireland, admitted ; here the custo-
dian's certified copies were also in evidence).
[Note 6; add:]
1908, State v. Skillman, 76 N. J. L. 474, 70 Atl. 83 (photographic enlargements, admitted).
1904, Johnson v. Com., 102 Va. 927, 46 S. E. 789 (enlarged photographs of specimens,
admitted).
So, too, enlarged drawings or diagrams are allowable : 1904, State v. Ryno, 68 Kan. 348,
74 Pac. 1114 (blackboard illustrations of handwriting by an expert, allowed).
1890, McKay v. Lasher, 121 N. Y. 477, 24 N. E. 711 (cited ante, § 791, n. 1).
1904, Groff V. Groff, 209 Pa. 603, 59 Atl. 65 (blackboard reproductions of the disputed sig-
natures, held not improperly excluded in the trial Court's discretion). ,
§ 803. Deposition ; Officer not to be Party's Agent or Kinsman.
[Note 3; add:]
1682, Newton v. Foot; Dick. 793 (deposition suppressed, because "the clerk of the plain-
tiff's soUcitor sat as clerk to the commissioners").
1819, Cooke v., Wilson, 4 Madd. 380 (soUcitor's clerk).
1906, Bledsoe v. Jones, 145 Ala. 685, 40 So. Ill (counsel).
1906, Southern P. Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401 (deposition in a foreign country,
not excluded merely because the solicitor of the witness, a party interested, read to him the
interrogatories in the commissioner's presence).
Ark. St. 1905, c. 326 (deposition may be written "by any one who may be called on to do
the writing by the officer").
1848, Glanton v. Griggs, 5 Ga. 424, 426, 433 (a student of defendant's counsel acting as
commissioner).
Ga. St. 1908, No. 568, p. 84, Aug. 17 (depositions).
1904, Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N. E. 869 (deposition written by the
ofiice-clerk and stenographer of one of the attorneys, excluded, because not by a "dis-
interested person"; good opinion by Dowling, C. J.).
1913, Segura's Succession, 134 La. — , 63 So. 640 (counsel for a party, disqualified).
N. C. Rev. 1905, § 1652 (like Code 1883, § 1357).
For affidavits, the ofiicer taking the acknowledgment is subject to the same rule :
1907, Malcom Sav. Bank v. Cronin, 80 Nebr. 228, 114 N. W. 158 (noting the effect of stat-
utes).
[Note 4 ; add before 1. 1 :]
Man. St. 1910, 10 Edw. VII, c. 71.
1911, Rev. Bond, 21 Man. 366.
Can. St. 1913, 3-4 Geo. V, c. 13, § 25 (provision for stenographic transcripts of depositions
without witness' signing or reading; amending § 683, Crim. Code 1906).
Tenn. St. 1909, c. 160, p. 560 (depositions may be taken by stenographer).
173
§803 TESTIMONIAL QUALIFICATIONS
[Note 4 — coniimied]
U. S. St. 1900, Mar. 23, c. 54L
W. Va. St. 1909, c. 44, p. 382 (provision for stenographer's transcription and for certifica-
tion of the transcript without signature of witness).
The following statute seems hardly necessary :
N. Y. St. 1912, c. 390, p. 746 (inserting § 2226 in C. Cr. P. ; examination before magistrate
may be taken by stenographer and certified by magistrate).
§ 805. Reading Over and Signing.
[Note 1; add:]
1908, Slaughter Co. v. King Lumber Co., 79 S. C. 338, 60 S. E. 705 (deposition taken directly
by typewriting, without shorthand transcription, need not be read over, under 23 Stats.
at L. p. 1072).
§ 811. Inteipreted Testimony; Deaf- Mutes, Aliens, etc.
[Note 1; add:]
This important reason why Courts are reluctant to allow the use of an interpreter unless
really necessary, i. e. that his intervention cripples a cross-examination, is equally noted
in modem practice : Train, " The Prisoner at the Bar," 1906, p. 239 (quoted post, § 1367,
n. 5).
[Note 2; add:]
1906, Dobbins v. Little Rock R. & E. Co., 79 Ark. 85, 95 S. W. 794 (deaf-mute).
1906, People v. Salas, 2 Cal. App. 537, 84 Pac. 295 (trial Court's discretion controls).
' 1912, People v. Rardin, 255 111. 9, 99 N. E. 59 (competency determined by the trial Court ;
here a distant relative of the prosecutrix).
[Note 3, col.' 1 ; add :]
1906, Dobbins v. Little Rock R. & E. Co., 79 Ark. 85, 95 S. W. 794 (deaf-mute's testimony
taken by a sign-interpreter, instead of through written questions and answers).
Minn. St. 1905, c. 47 (a deaf or dumb person charged with insanity is entitled to an inter-
preter "as a matter of absolute right").
The following statutes belong here :
Alta. St. 1910, 2d sess., Evidence Act, c. 3, § 18 ("A witness who is unable to speak may
give his evidence in any other manner in which he can make it intelligible").
Sask. St. 1907, Evidence Act, § 33 (like Alta. St. 1910, c. 3, § 18).
[Note 7, par. 1 ; add:]
1907, State v. Smith, 203 Mo. 695, 102 S. W. 526 (like State v. Burns, la.).
1908, People v. Weston, 236 111. 104, 86 N. E. 188 (deaf-mute; the judge may cause the
witness and the proposed interpreter to be questioned for ascertaining the feasibility of
interpretation, but on demand the jury should be removed during this stage). i
1911, Com. V. Shooshanian, 210 Mass. 123, 96 N. E. 70 (a witness who understands both
languages may give a translation of a conversation heard by him, without calling an inter-
preter).
It deserves protest here that one of the greatest injustices done in the courts of our
metropolitan cities is the failure to provide honest and competent interpreters.
§ 812. Other Principles Discriminated.
[Text, p. 917 ; add a new par. (5) :]
(5) An interpreter must take an oath to interpret truly {post, § 1824).
174
QUALIFICATIONS; COMMUNICATION §821
§ 815. Confessions ; Rule applies to Accused, not to Witness.
[Note 2; add,:]
1905, Rawlins v. State, 124 Ga. 31, 52 S. E. 1 (a confession of an accomplice having been
obtained by officers through fear, but not being admitted, the jury were allowed, in weigh-
ing the accomplice's testimony on the stand, to consider evidence that he had been put in
fear "and still labored under this fear").
1912, State ». Miller, 68 Wash. 239, 122 Pac. 1066 (accomplice ; the opinion collects recent
precedents).
§ 816. Admissions, etc., distinguished.
[Note 1 ; add :\
For confessions used as self-contradictions to impeach on accused taking the stand, see
post, § 821, n. 2.
§ 818. Confessions in the 1600s and 1600s.
[Note 7, 1. 9 from the end ; add:]
In The Athenian Mercury, a periodical printed between 1690 and 1697 (edited in selections
as The Athenian Oracle, by J. Underbill, Camelot Series, 1892), a correspondent asks whether
torture to a suspected criminal is unlawful, and the editor replies (p. 196) that "'tis neither
political nor reasonable; but were it both of these, we very much doubt the lawfulness
of it; Christianity and the laws of nature seem to forbid it" ; the law of the land had as
yet not shown a plain attitude to the editor.
[Note 7 ; at the end, add :]
Esmein, History of Continental Criminal Procedure (Simpson's transl.. Continental Legal
History Series) ,1913, Part I, tit. II, ch. II, § 4, p. 107, and Part III, tit. II, ch. II, § § 1-6, p. 351 .
§ 821. What is a Confession.
[Note 2, par. 1 ; add :]
1913, R. V. Hurd, Alta. S. C, 10 D. L. R. 475 aarceny).
1905, Carwile v. State, 148 Ala. 576, 39 So. 220. 1906, Neville v. State, 148 Ala. 681, 41
So. 1011 aarceny). 1909, Kelly v. State, 160 Ala. 48, 49 So. 535.
1904, People v. Jan John, 144 Cal. 284, 77 Pac. 950 (People v. Ammermann followed).
1905, People v. Kelly, 146 Cal. 119, 79 Pac. 846. 1906, People v. Weber, 149 Cal. 325,
86 Pac. 671 (statements showing an alibi).
Colo. : but see Tuttle v. People, 1905, 33 Colo. 243, 79 Pac. 1035, contra, ignoring Mora v.
1910, State v. Turner, 82 Kan. 787, 109 Pac. 654.
1906, State v. Thomas, 135 la. 717, 109 N. W. 900.
1904, State v. Aspara, 113 La. 940, 37 So. 883.
1905, State v. Royce, 38 Wash. Ill, 80 Pac. 268.
[Note 2, par. 3; add:]
1904, Parks v. State, 46 Tex. Cr. 100, 79 S. W. 301 (Bailey v. State followed; the Quintana
and Ferguson cases apparently repudiated, where the statement is not used to impeach the
defendant as a witness ; Brooks, J., diss.).
In State v. Gianfala, 113 La. 463, 37 So. 30 (1904), is a ridiculous example of an accused's
exculpatory statement excluded because the Court thought that "he may well have been
in fear and may well have hoped to mitigate his act," i. e. being probably a false exculpa-
tion, therefore it should be rejected ; this is the rule of law gone mad).
175
§821 TESTIMONIAL QUALIFICATIONS
[Note 2, par. 4; add:]
Accord : 1909, Harrold v. Terr., 8th C. C. A., 169 Fed. 47 (where a defendant, by taking the
stand, waives his privilege and may be cross-examined to his admissions in general, a con-
fession not admissible under the present rules may not be introduced by first asking him if
he made it, and then, on his denial, by evidencing it with other testimony ; i. e. the rules
limiting the admissibility of a confession apply no matter how it be evidenced).
Contra: 1911, People v. Brown, 203 N. Y. 44, 96 N. E. 367 (the rule for confessions does not
apply when the accused, taking the stand, is asked as to his former statements as a wit-
ness before the coroner).
[Note 3; add:]
1910, People v. Wilkins, 158 Cal. 130, 111 Pac. 612.
1904, Owens v. State, 120 Ga. 296, 48 S. E. 21 (an absurd ruling; the Court incidentally
makes the remarkable pronouncement that "a confession is rather a fact to be proved by
evidence than evidence to prove a fact" ; Lamar and Candler, JJ., diss.).
1904, Michaels v. People, 208 111. 603, 70 N. E. 747 (defendant on being arrested and charged
•with forgery, said, "Can't this thing be fixed up?" ; held, not a confession).
1906, State v. Campbell, 73 Kan. 688, 85 Pac. 784 (statement of the receipt of money
lawfully).
• 1909, State v. Brinkley, 55 Or. 134, 105 Pac. 708.
1909, State v. Moore, 36 Utah 521, 105 Pac. 293 (adultery by the defendant, being wife of
C. H. M., with A. J. M. ; the sheriff, on receiving her in custody, made the usual inquiries,
required by law as to her name, age, etc., and asked her, "Are you the wife of C. H. M. ? " ;
her answer held not a confession).
Contra: 1911, McGehee v. State, 171 Ala. 19, 55 So. 159 ("inculpatory admissions in the
nature of a confession," that is, directly relating to the fact or circumstances of the crime and
connecting the defendant therewith, "are subject to the rules for confessions").
[Text, p. 930, at the end, add:]
(4) Of course the present rules of exclusion have no application to a con-
fession made in open court before judge and jury on the trial of the issue.^
* In Garner v. State, 97 Ark. 63, 1910, 132 S. W. 1010, is an extraordinary instance of
the improper exclusion of such a confession, on the ground that defendant's counsel was not
present.
§ 825. Confession induced by Threat or Promise.
[Note 5; add:]
1905, R. V. Ryan, 9 Ont. L. R. 137 (confession of a letter-carrier to a post-oflSce inspector,
admitted on the facts ; R. v. Thompson followed).
§ 829. Person in Authority ; Threats or Promises, etc.
[Note 4:; add:]
1911, Godinho's Case, 7 Cr. App. 12 (a hope of pardon originating in the accused's own
mind, and not due to the statement of any person in authority, does not exclude).
1901, R. V. Todd, 13 Man. 364 (detectives obtaining a confession by trick, held not persons
in authority).
1905, R. V. Ryan, 9 Ont. L. R. 137 (a post-office inspector questioning a letter-carrier ; not
decided).
176
QUALIFICATIONS; COMMUNICATION §833
§ 830. Same : United States Doctrine.
[Note 4: ; add:]
1909, People v. Finer, 11 Cal. App. 542, 105 Pac. 780 (the injured person may be a person
in authority).
1910, People ». Luis, 168 Cal. 285, 110 Pac. 580 (a bystander, not a person in authority).
§831. Nature of the Inducement ; Statutory Definitions.
[Note 2; add:]
Ind.. St. 1905, p. 584, § 239 (amending the above statute by adding, after the word
"threats" the words, "or by intimidation or undue influences").
Ky. : St. 1912, c. 135, Mar. 19, p. 642 (confessions to police; quoted post, § 851).
N. Y. : 1908, People v. Rogers, 192 N. Y. 331, 85 N. E. 135 (Code Cr. P., 1881, § 395 ; the i^-
words "private person" include a police officer or any other person not conducting a judi-
cial proceeding) ; the New York Code's rule seems nowadays to be applied with more
care, i. e.so as to render inapplicable all the quibbles dealt with in the ensuing sections.
Tex.: St. 1907, c. 118, p. 219 (amending C. C. P. Art. 790; instead of the clause "or be
made voluntarily" etc., after the first "unless," substituting : "or be made in writing and
signed by him, which written statement shall show that he was warned by the person to
whom the same is made, first, that he does not have to make any statement at all, second,
that any statement made may be used in evidence against him on his trial for the offence,"
etc. ; and adding at the end, "provided that where the defendant is unable to write his
name and sign [s?] the statement by making his mark, such statement shall not be ad-
mitted in evidence, unless it be witnessed by some person other than a peace oflScer, who
shall sign the same as a witness").
Wash.: the Supreme Court of Washington has unfortunately thus far given very little
effect to this reform, as the decisions cited post, §§ 851, 852, will indicate.
§ 832. Advice that " it would be better to tell the truth."
[Note 1; add:]
1904, Brewer v. State, 72 Ark. 146, 78 S. W. 773 (Hardin «. State approved).
[Note 3; add:]
1911, Stanton's Case, 6 Cr. App. 198.
1911, Reagan v. People, 49 Colo. 316, 112 Pac. 785 ("I want the straight facts," admitted).
1905, State v. Wescott, 130 la. 1, 104 N. W. 341.
1904, Com. V. Hudson, 185 Mass. 402, 70 N. E. 436, semble.
1906, State v. Johnny, 29 Nev. 203,- 87 Pac. 3 (by a sheriff, "You might as well tell the
truth").
1912, State v. Humphrey, 63 Or. 640, 128 Pac. 824.
1910, State v. AlUson, 24 S. D. 622, 124 N. W. 747.
1905, Hintz v. State, 125 Wis. 405, 104 N. W. 110 ; Roszczyniala v. State, ib. 414, 104 N. W.
113.
§ 833, Threat of Corporal Violence.
[Note 3; add:]
1904, Edmonson v. State, 72 Ark. 686, 82 S. W. 203 (threat of hanging, excluded).
1907, Thurman v. State, 169 Ind. 240, 82 N. E. 64 (admitted on the facts).
1904, State v. Gianfala, 113 La. 463, 37 So. 30 (excluded; poor ruling).
177
§833 TESTIMONIAL QUALIFICATIONS
[iVoifi 4, 1. 4 from below ; add:] > '
1904, State v. Middleton, 69 S. C. 72, 48 S. E. 35 (confession obtained by threats of whip-
ping, etc., excluded).
1906, Jackson v. State, 50 Tex. Cr. 302, 97 S. W. 312 (cqnfession obtained by hanging and
burning, excluded).
[Note 5; add:]
For the use of police-officers' questions to one under arrest, and the recent statutes and deci-
sions concerning the "sweat-box" or "third degree" in this sense, see post, § 851. •
§ 835. Inducements involving Lighter Punishment, etc.
[Note 1 ; add :]
1906, Smith v. State, 125 Ga. 252, 54 S. E. 190 ("it would be lighter on him").
1-906, Maxwell v. State, — Miss. — , 40 So. 615.
1906, Johnson v. State, 89 Miss. 773, 42 So. 606 (promise to intercede with the judge, etc. ;
excluded).
1906, Sorenson v. U. S., 143 Fed. 820, C. C. A.
§ 836. Promises of other Favorable Legal Action.
[Note 1, par. 1 ; add :]
1910, Boughton's Case, 6 Cr. App. 8 ("It has been conclusively established" that a prom-
ise that "there will be no prosecution " excludes the confession).
1911, Stanton's Case, 6 Cr. App. 198 ("If you will give me back my rings, I will forgive
you" ; this "would be a grave question").
1904, State v. Hunter, 181 Mo. 316, 80 S. W. 955 (promise not to prosecute).
§ 839. Sundry Phrases and Inducements.
[Note 1, par. 1 ; add :]
1911, State V. Lee, 127 La. 1077, 64 So. 356 ("If I was in your place and you was the right
man, I would try and eilect a compromise" ; excluded).
[Note 3, under Promises ; add:]
1912, State v. Kwiatkowski, 83 N. J. L. 650, 85 Atl. 209 (by an interpreter, that he would
help him if he could ; admitted).
§ 840. Influences of a Moral or Religious Nature.'
[Note 2; add:]
1913, Mitsunaga v. People, 54 Colo. 102, 129 Pac. 241.
§ 841. Confession induced by Trick or Fraud.
[Note 1, par. 1; add:]
1904, R. V. Todd, 13 Man. 364 (detectives pretended to be a gang of criminals, and obtained
a confession from the accused as qualifying him to join their gang; admitted).
1908, R. V. White, 18 Ont. L. R. 640 (confession induced by a police officer's false statement
as to an accomplice confessing, admitted).
1910, People v. Dunnigan, 163 Mich. 349, 128 N. W. 180 (repudiating the contrary intima-
tion in People v. McCuUough, 81 Mich. 25, 45 N. W. 515).
1907, People «. Furlong, 187 N. Y. 198, 79 N. E. 978 (People v. White, supra, followed).
178
QUALIFICATIONS; COMMUNICATION §847
[Note .1 — continued]
1909, People v. Scott, 195 N. Y. 224, 88 N. E. 35 (confession induced by a trick purporting
to give the defendant a chance to escape, admitted, under C. Cr. P., § 395).
Distinguish the following :
1908, R. V. Choney, 17 Man. 467 (a purporting agent of defendant's attorney falsely told
the defendant while in jail that the attorney had telephoned him "to tell him everything
about the case"; excluded).
[iVo/e2, 1. 2; add:] •
or during insanity (ante, §§ 493-495).
§ 847. English Practice ; Confessions under Arrest,
[Note 10; add:]
The difference of attitude in English judges still continues : 1893, R. v. Male & Cooper,
17 Cox Cr. 689 ("The prisoner should be previously cautioned").
1895, R. V. Miller, 18 Cox Cr. 54 (answers to questions by an inspector without caution,
admitted; "it is impossible to discover the facts of a crime without asking questions").
1898, Rogers v. Hawken, 19 Cox Cr-. 122 (R. v. Male & Cooper not followed; there is "no
such rule" that a statement made in answer to an officer's question, without caution but
without inducement, is inadmissible; good opinion by Russell, L. C. J.).
1898, R. V. Histen, 19 Cox Cr. 16 ("When a prisoner is once taken into custody, a police-
man should ask no questions at all without administering the usual caution).
1905, R. V. Knight & Thayre, 20 Cox Cr. 711 ("When a police-officer has taken anyone
into custody, and also before doing so when he has already decided to make the charge, he
ought not to question the prisoner. ... I am not aware of any distinct rule of evidence
that if such improper questions are asked the answers to them are inadmissible, but . . .
in my opinion that is the right course to pursue").
1909, James' Case, 2 Cr. App. 319 (to a police-officer, while under arrest; he said, "You
must tell me. . . . Any statement will be given in evidence against you at your trial" ;
no caution; admitted, citing R. v. Thomas and R. v. Reason).
1909, Best's Case, 1 K. B. 692 (answers given to a constable's questions after a caution,
admitted ; L. C. J. Alverstone : "In our opinion R. v. Gavin, 15 Cox Cr. C. 656, is not a
good decision ; . . . it is too wide and requires qualification").
1910, Unsworth's Case, 4 Cr. App. 1 (confession while in jail to a constable ; no warning,
no inducement; admitted).
Canada: 1904, R. v. Kay, 11 Br. C. 157 (answers to police officer, without a caution, and
under arrest, excluded ; "the arrest and charge are in themselves a challenge to the accused
to speak, — an inducement within the rule"; a caution of the purpose and consequences
must be given). , ,
1913, U. S. V. Wrenn, N. Sc. S. C, 10 D. L. P. 452 ("the practice of detectives interrogating
a prisoner when in jail, and when no one else is present at the interview, should be dis-
couraged").
1890, R. V. Day, 20 Ont. 209 ("Although we reprehend the practice of questioning prisoners,
we cannot come to the conclusion that evidence obtained by such questioning is inad-
missible").
1899, R. V. Elliott, 31 Ont. 14 ("R. v. Day is the case settling the law in this Province").
1909, R. V. Steffoff, 20 Ont. L. R. 103 (made to the police under arrest aftei' caution,
admitted).
1012, R. 11. Cummings, Que. K. B., 5 D. L. R. 86 (confession to an officer after caution,
admitted).
1912, The King v. Hoo Sam, Sask. S. C, 1 D. L. R. 569 (if the officer puts questions,
there must be a caution ; prior cases examined).
179
§850 TESTIMONIAL QUALIFICATIONS
§ 850. English Practice ; Confessions by a Witness, etc.
[Note 17, par. 1, col. 2, 1. 12; add:]
1898, R. V. Bird, 19 Cox Cr. 180 (the accused testified before the magistrate and signed the
written report; then, on being asked whether he had anything to say in answer to the
charge, replied, "What I have already said is true"; the Court of Crown Cases Reserved
held (1) that this answer made the written report admissible, (2) that, even without the
answer, the written report was admissible, following R. v. Erdheim).
[Note 17, par. 2; add:]
1904, R. V. Golden, 11 Br. C. 349 (forgery ; after the statutory caution, the accused declined
to say anything, but on request of the magistrate signed his name to the written statement ;
the signature was admitted to compare with the alleged forgery).
§851. United States ; Confessions under Arrest.
- [Note 1, par. 1; add:]
1905, Braham v. State, 143 Ala. 28, 38 So. 919. 1907, Heningburg v. State, 153 Ala. 13,
45 So. 246.
1907, Terr. v. EmiUo, — Ariz. — , 89 Pac. 239.
1913, Greenwood v. State, — Ark. — , 156 S. W. 427 (even when questions are put).
1908, People d. Siemsen, 153 Cal. 387, 95 Pac. 863.
1911, Byram d. People, 49 Colo. 533, 113 Pac. 528.
1904, McNish v. State, 47 Fla. 69, 36 So. 176 (the accused under arrest in chains, alone with
the officer; admitted).
1904, Williams v. State, 48 Fla. 65, 37 So. 521.
1909, Daniels v. State, 67 Fla. 1, 48 So. 747 (see the authorities under § 861, •post).
1910, Sims V. State, 59 Fla. 38, 52 So. 198.
1905, Folds 13. State, 123 Ga. 167, 51 S. E. 305.
1912, Terr. v. Chung Ning, 21 Haw. 214, 220 (statements made in answer to police questions,
after a caution, admitted).
1905, Hoch V. People, 219 111. 265, 76 N. E. 356.
1908, State v. Laughlin, 171 Ind. 66, 84 N. E. 756 (under St. 1905, c. 168, § 239).
1904, State v. Icenbice, 126 la. 16, 101 N. W. 273. 1910, State v. Neubauer, 145 la. 337,
124 N. W. 312. 1913, State v. Kilduff, — la. — , 141 N. W. 962.
1905, State v. Inman, 70 Kan. 894, 79 Pac. 162.
1904, Hathaway v. Com., — Ky. — , 82 S. W. 400.
1904, State v. Lewis, 112 La. 872,36 So. 788. 1904, State ». Lyons, 113 La. 959, 37 So. 890.
1906, State, v. Hogan, 117 La. 863, 42 So. 353. 1907, State v. Williams, 120 La. 175, 45
So. 94. 1908, State v. Pamelia, 122 La. 207,'47 So. 508.
1906, Birkenfeld v. State, 104 Md. 253, 65 Atl. 1. 1914, McCleary x. State, — Md. — , 89
Atl. 1100.
1908, People v. Owen, 154 Mich. 571, 118 N. W. 590.
1906, State v. Barrington, 198 Mo. 23, 95 S. W. 235. 1906, State v. Church, 199 Mo. 605,
98 S. W. 16. 1906, State v. Spaugh, 199 Mo. 147, 98 S. W. 55. 1909, State v. Brooks, 220
Mo. 74, 119 S. W. 353. 1910, State y. Green, 229 Mo. 642, 129 S. W. 700 (by questioning of
officers).
1908, People «. Rogers, 192 N. Y. 331, 85 N. E. 135. 1909, People v. Randazzio, 194 N. Y.
147, 87 N. E. 112 (statutory rule appUed). 1910, People v. Hill, 198 N. Y. 64, 91 N. E. 272.
1912, People v. Garfalo, 207 N. Y. 141, 100 N. E. 698 (arrested and in the presence of the
victim).
1905, State v. Smith, 138 N. C. 700, 50 S. E. 859. 1905, State v. Horner, 139 N. C. 603,
52 S. E. 136. 1907, State u. Jones, 145 N. C. 466, 59 S. E. 353.
1910, Com. V. Aston, 227 Pa. 112, 75 Atl. 1019.
180
QUALIFICATIONS; COMMUNICATION §851
[Note 1 — continued]
1906, State v. Henderson, 74 S. C. 477, 55 S. E. 117.
1908, State v. Landers, 21 S. D. 606, 114 N. W. 717. 1908, State v. Vey, 21 S. D. 612, 114
N. W. 719.
1912, MuUins v. Com., 113 Va. 787, 75 S. E. 193 (accused's examination at the inquest,
excluded under Code § 3901).
1904, State v. Blay, 77 Vt. 56, 58 Atl. 794.
1906, State v. Poole, 42 Wash. 192, 84 Pac. 727 (this opinion devotes a page to this point,
and cites authorities from other jurisdictions, apparently forgetting that the local statute,
cited ante, § 831, has replaced the common law rule and made a new and unique one ; this
Court should be urged to recall its words in State v. Hopkins, quoted ante, § 831, that "the
former rule does not obtain," and to look only at the statutory question of "fear produced
by threats," instead of keeping alive all the old controversies and quibbles and thus losing
the benefit of the statutory reform).
1905, Hintz v. State, 125 Wis. 405, 104 N. W. 110 ; Roszczyniala v. State, ib. 414, 104 N. W.
113. 1911, Tarasinski v. State, 146 Wis. 508, 131 N. W. 889.
[Note 1, par. 2; add:]
1904, Parker v. State, 46 Tex. Cr. 461, 80 S. W. 1008 (this decision finally reads all life out of
the statute, by excluding the defendant's answers to the county attorney's questions, after
due warning, under arrest, at the inquest; the ground is that testimony given under a
severe cross-examination is not voluntary; this kind of judicial vapidity certainly makes the
way smooth for the accused and hard for the prosecution, and may throw some light on the
remarkably high record of homicides in this State).
1910, Jenkins v. State, 60 Tex. Cr. 236, 131 S. W. 542 (amendment of 1907, ante, § 831,
construed ; the confession must contain a recital of the caution and of its being given by the
person to whom the confession is made ; Ramsey, J., diss., prior cases considered).
[Text, p. 979, 1. 5, at the end of the section; add:]
But does it make any difference that the confession was made in answer
to interrogatories put by a police officer to the person under arrest? No,
on the once settled principles of the authorities above cited. Yet the last
ten years have seen signs of backsliding in some Courts.
This new phase of reaction is due to the misguided application of the terms
" sweat-box " and " third degree " to such a process. Those terms originally
and properly signified the use of some form of violence, in that sense, a con-
fession so obtained was and is inadmissible (ante, § 833). But journalistic
exaggeration has in common usage misapplied the terms to any process of
simple interrogation of the arrested person, while in seclusion, by an official
other than the judge.^ Calling a thing by a bad name does not make it
any worse. Let us therefore ask whether there is any reason why this simple
and traditional process calls for prohibition. Assume that there is no
'The "sweat-box" and "third degree" practices, in their legitimate scope, are well ex-
plained by Mr. Thomas Byrnes, former chief of detectives in New York City, in the Sunday
Magazine, Oct. 9, 1905, with which is to be compared the long-established and highly-
developed French method, as illustrated in the citations of § 2251, n. 12, post (notably
Gaboriau's novel " Monsieur Lecocq "). Further accounts by experienced persons are the
following: Arthur Train, "Courts, Criminals, and the Camorra" (1912), p. 20; Allan
Pinkerton, "Bank Robbers and Detectives" (1882), p. 231; International Association of
Chiefs of Police, 1910, Proceedings of 17th Annual Session, p. 54.
181
I 851 TESTIMONIAL QUALIFICATIONS
I Tea:*, p. 979 — continued]
violence; suppose the normal case of lengthy interrogation in seclusion,
immediately after arrest ; what are the considerations which should govern ?
(1) In the first place, an innocent person is always helped by an early
opportunity to tell his whole story; hundreds of suspected persons every
day are set free because their story thus told bears the^ marks of truth. More-
over, and more important, every guilty person is almost always ready and
desirous to confess, as soon as he is detected and arrested. This psycho-
logical truth, well known to all .criminal trial judges, seems to be ignored by
some Supreme Courts. The nervous pressure of guilt is enormous; the
.load of the deed done is heavy ; the fear of detection fills the consciousness ;
and when detection comes, the pressure is relieved; and the deep sense of
relief makes confession a satisfaction.' At that moment, he will tell all,
and tell it truly. To forbid soliciting him, to seek to prevent this relief, is
to fly in the face of human nature. It is natural, tad should be lawful, to
take his confession at that moment, — the best one. And this expedient,
if sanctioned, saves the State an enormous delay and expense in convicting
him after he has reacted from his first sensations, has yielded to his friends'
solicitations, and comes under the sway of the natural human instinct to
struggle to save himself by the aid of all technicalities.
(2) In the case of professional criminals, who usually work in groups,
there is often no hope of getting at the group until one of them has " peached,"
and given the clues to the police. The police know this, and have known it
for generations in every country. The only ones who apparently do not
know it are some of the Supreme Court judges. A thorough questioning of
the first suspected person who is caught makes possible the pursuit of the
right trail for the others. To forbid this is to tie the hands of the police.
The attitude of some judges towards these necessary police methods is lament-
able ; one would think that the police, not the criminals, were the enemies
of society. To disable the detective police from the very function they are
set to fulfil is no less than absurd. Let the judges who sit in judgment on
crime look a little into the facts ; let them read Arthur Train's " The Prisoner
at the Bar." Let them not sit up aloft, and dictate a rule which ignores the
well-known facts of criminal life and hampers the needful methods of justice.
But, it is argued, there are abuses by the police. Very true, — here and
there, at least. It does not follow, however, that a stricter rule of exclusion
for confessions is the proper remedy. It is still a misguided remedy. The
true one is to provide a means of speedy confession which shall be less sus-
ceptible to abuses, while still taking advantage of the inherent psychological
situation. In short, let an authorized skilled magistrate take the confession.
Let every accused person be required to be taken before a magistrate within
' Read Balzac's description of this in "Lucien de Rubempre," c. XV, and "The Last
Incarnation of Vautrin," c. II; also Daniel Webster's speech at the Knapp-Crownin-
shield Trial. Psychologists report that their studies have not yet taken up this phe-
nomenon. But so well established a fact should be supplied with its scientific explanation.
182
QUALIFICATIONS; COMMUNICATION §851
[Text, p. 979 — continued]
a day after arrest for private examination ; let the magistrate warn him
of his right to keep silence ; and then let his statement be taken if he is willing
to make one.
Such is the expedient employed in every other civilized country on earth
except our own. Such is the method long ago adopted in England.* We
need not go so far as to introduce the French " juge d'instruction " into our
system ; but we may at least accept English experience of two generations.
The examination before a magistrate meets a real need of the situation,
both psychological and detective. To attempt to get along without it is
virtually to force the police to practise it. For the pursuit of crime needs
and justifies it; and as long as our legislators and judges are shortsighted
enough to fail to provide it with proper safeguards, it must and will be prac-
tised without them.
From what is above said, it follows that the recent attempts, legislative
and judicial, to exclude confessions obtained by police-questioning of persons
arrested and in seclusion represent simply a misguided solution of the problem.^
1 St. 1849, quoted ante, § 848, n. 7. '
"California: 1910, People v. Loper, 159 Cal. 6, 112 Pac. 720 (the "sweating process";
confession excluded ; but what does the opinion mean by exhuming the historical errors of
the majority opinion in Bram v. U. S., and offering them as law? That case should be
forgotten).-
1911, People V. BoreUo, 161 Cal. 367,' 119 Pac. 500 (an ordinary confession obtained by inter-
rogation, peculiar only in the amount of profanity used by the sheriff ; excluded).
Kentucky: St. 1912, Mar. 19, c. 135, p. 542 (1. Sweating is defined to be "the questioning of
a person in custody charged with crime in an attempt to obtain information from him con-
cerning his connection with the crime or knowledge thereof," "by plying him with ques-
tions or by threats or other wrongful means, extorting from him information to be used
against him," etc. 2. (Such questioning is forbidden to a police or similar officer while in
charge). 3. (A confession thus obtained is inadmissible). 4. (Penalty for offence above
defined). The legislative phraseology is crude and discreditable.
1913, Com. V. McClanahan, 153 Ky. 417,155 S. W. 1131 (St. 1912, applied, to exclude a con-
fession obtained by a police officer's continued questioning, without threats ; the opinion
shows no appreciation of the misguided nature of the legislation).
1914, Hehn v. Com., 156 Ky. 751, 162 S. W. 94 (a statement made without being questioned
by the officer, admitted, is not within the prohibition of St. 1912).
1914, Deaton v. Com., 157 Ky. 308, 163 S. W. 204 (St. 1912, held not applicable, where the
accused went voluntarily to the prosecuting attorney and made their confessions).
Louisiana: St. 1908, No. 109, p. 166, July 1 (officers in custody of accused "who shall
frighten by threats or who shall torture or shall resort to any means of an inhuman nature
whatever to secure a confession" are punishable).
Missouri: 1905, State v. Stebbins, 188 Mo. 387, 87 S. W. 460 (here the Court improperly
rebukes the prosecuting attorney for questioning the accused in his office ; the confession
in writing here stated that it was made "of my own free will and accord," and that the pros-
ecuting attorney had informed him that it "will be used against me," yet the Court prates
about his being "compelled to testify against himself").
1913, State v. Thomas, 250 Mo. 189, 157 S. W. 330 (the fact that a confession was obtained
"by almost continuous interrogatories during 24 hours was almost sufficient to justify a
court in rejecting the statement and admissions as involuntary").
Texas: St. 1907 (quoted ante, § 831)
183
§852 TESTIMONIAL QUALIFICATIONS
§ 852. Confessions made before a Magistrate or as a Witness.
[Note 1 ; aM :]
1906, Peck V. State, 147 Ala. 100, 41 So. 759 (an entrapping interrogation by the magistrate
just before the preUminary hearing of the accused ; excluded).
1913, People v. O'Bryan, 165 Cal. 55, 130 Pac. 1042 (under arrest, on oath, before the grand
jury, without warning, held inadmissible, following People v. Molineux, N. Y. ; but the
opinion sanctions the ejqjloded error that such an examination violated the privilege against
self-crimination ; of course, as noted ante, § 850, par. (3), there is no compulsion in such cases,
hence no violation of that privilege).
1905, Tuttle V. People, 33 Colo. 243, 79 Pac. 1035 (testimony on oath as witness subpoenaed
before the coroner, knowing that he was under suspicion, and without warning, excluded ;
the Court thus takes this opportunity to ally itself with the old-fashioned and absurd
quibbles, which, in a State not hampered with a past record on this subject, an enlightened
judiciary could have afforded to repudiate ; the ruling is the more inexcusable in that the
statements offered were conceded to be not confessions in the proper sense — ante, § 821
— but statements of "their whereabouts" ; the Court in a defensive manner remarks that
"Crime should be punished," etc., but fails to explain how it can be punished so long as
Courts maintain an obstructive anachronistic attitude on such questions). 1911, Reagan
!). People, 49 Colo. 316, 112 Pac. 785 (on oath, under arrest, before the coroner, after a
warning, admitted).
1909, Daniels v. State, 57 Fla. 1, 48 So. 747 (statements made under arrest before the
coroner, even though not strictly confessions, are not admissible unless the person is "fully
advised of his rights" and then voluntarily makes the statement). '
1905, Davis v. State, 122 Ga. 564, 50 S. E. 376 (statements to the grand jury as witness,
after a caution, admitted ; no authority cited). 1905, Green v. State, 124 Ga. 343, 52 S. E.
431 (defendant's testimony, under arrest, at the coroner's inquest, admitted). 1907,
Adams V. State, 129 Ga. 248, 58 S. E. 822 (examination on oath before the coroner, under
arrest, and without warning; excluded).
1887, State ii. Taylor, 36 Kan. 329, 13 Pac. 550 (testimony at the inquest, without subpoena,
or questioning, admitted).
1905, State v. Finch, 71 Kan. 793, 81 Pac. 494 (testimony as witness subpoenaed at the
inquest, not in custody nor under suspicion, admitted).
1903, Tines v. Com., — Ky. — , 77 S. W. 363 (affidavit made to the district attorney, ex-
cluded ; no precedents cited). 1904, Seaborn v. Com., — Ky. — , 80 S. W. 223 ("voluntary
testimony" before committing magistrate, admitted). 1904, Bess v. Com., 118 Ky. 858,
82 S. W. 576 (defendant's voluntary testimony on his former trial, admitted).
1912, Com. V. Mackenzie, 211 Mass. 578, 98 N. E. 598 (on oath before the grand jury,
voluntarily and after warning, admissible).
1908, People v. Owen, 154 Mich. 571, 118 N. W. 590 (on oath under arrest, before a chief
detective and a notary; admitted).
1906, Cooper v. State, 89 Miss. 429, 42 So. 601 (testimony under oath before the grand jury,
while in custody as accused, excluded ; Steele ». State distinguished).
1890, State v. MuUins, 101 Mo. 514, 14 S. W. 625 (murder; voluntary testimony at the
inquest, admitted, the accused being "well known" to be the killer). 1904, State v. Wood-
ward, 182 Mo. 391, 81 S. W. 857 (statement to a judge in chambers, not on oath and volun-
tary, admitted; not one of the foregoing cases, except State v. MuUins, is cited). 1911,
State V. Marion, 235 Mo. 359, 138 S. W. 491 (deposition of a party in a civil suit, admitted).
1906, State v. Banusik, — N. J. L. — , 64 Atl. 994 (confession not under oath, to a police
magistrate, in jail, after warning, admitted).
1912, State v. Humphrey, 63 Or. 540, 128 Pac. 824 (on examination before a grand jury,
after warning, admitted).
1911, State V. Barwick, 89 S. C. 153, 71 S. E. 838 (defendant allowed to be cross-examined
to statements made by him under oath in the mayor's court ; State v. Senn distinguished).
184
§857 QUALIFICATIONS; COMMUNICATION
[Note 1 — continued]
1906, Miller v. State, — Tex. Cr. — , 91 S. W. 582 (testimony as witness before the examining
magistrate, admitted). 1913, Rogers v. State, — Tex. Cr. — , 159 S. W. 40 (testimony be-
fore grand jury before arrest, reduced to writing and sworn to, admitted, as not being within
the statute).
1904, Burrell v. Montana, 194 U. S. 572, 24 Sup. 787 (answers made by a bankrupt on cita-
tion before a referee, not being in custody nor charged with a criminal offence, held admissi-
ble). St. 1910, May 7, c. 216, No. 168, 61st Cong. p. 352 (Rev. St. § 860, repealed). 1912,
Powers V. U. S., 223 U. S. 303, 32 Sup. 281 (on oath as accused before the magistrate, without
counsel, voluntarily testifying, but not warned by the magistrate).
1904, State v. Blay, 77 Vt. 56, 58 Atl. 794 (larceny ; plea of guilty before a justice of the
peace, without counsel or warning, iidmitted).
1904, State v. Washing, 38 Wash. 465, 78 Pac. 1019 (statement of defendant, an Indian,
made before a magistrate on arraignment, without oath but without warning, admitted;
compare the statute in this State, quoted ante, § 831 ; it does not seem to have produced its
intended effect, in preventing further discussion of questions like the present one; this is
seen also in the cases cited ante, § 851).
1907, State v. May, 62 W. Va. 129, 57 S. E. 366 (under Code 1906, c. 152, § 20, a statement
under oath made at a preliminary examination by a person charged but not under arrest
is not admissible). 1911, State v. Cook, 69 W. Va. 717, 72 S. E. 1025 (Code 1906, c. 152,
§ 20, forbidding the use of an accused's statement made under examination, does not forbid
cross-examination to such self-contradictory "former statement of an accused taking the
stand).
1907, Anderson v. State, 133 Wis. 601, 114 N. W. 112 (on oath and under arrest before the
coroner, without specific warning as to his privilege, admitted).
1911, Maki v. State, 18 Wyo. 481, 112 Pac. 334 (under arrest on oath before the coroner,
without warning, excluded).
§ 855. Was the Inducement brought to an End ?
[Note 1; add:]
1904, R. V. Lai Ping, 11 Br. C. 102 (confession in jail ; the caution by the magistrate, held
to remove a prior inducement).
1905, R. V. Young, 38 N. Sc. 427 (elaborate opinions, analyzing the precedents).
1905, Andrews v. People, 33 Colo. 193, 79 Pac. 1031 (Beery v. U. S. not cited).
1905, Griner ».- State, 121 Ga. 614, 49 S. E. 700. 1905, Milner v. State, 124 Ga. 86, 52 S. E.
302.
1907, State v. Foster, 136 la. 527, 114 N. W. 36.
1910, State v. Turner, 82 Kan. 787, 109 Pac. 654 (revolver delivered up by defendant after
threats by the sheriff).
1904, Green «. Com., — Ky. — , 83 S. W. 638 (confession to a private person, the next day
after an inducement by an officer and an inadmissible confession to him, received).
1906, State v. Rugero, 117 La. 1040, 42 So. 495.
1909, Com. V. Snyder, 224 Pa. 526, 73 Atl. 910.
1904, State v. Middleton, 69 S. C. 72, 48 S. E. 35 (discretion of the trial Court).
1912, State v. Miller, 68 Wash. 239, 122 Pac. 1066.
§ 857 ; Admission of the Part Confirmed.
[Note 1; add:]
Of course, the accused's subsequent confirmation of the confession on the stand cures any
shortcoming : 1906, State v. Johnny, 29 Nev. 203, 87 Pac. 3.
185
§858 TESTIMONIAL QUALIFICATIONS
§ 858. Prevailing Doctrine ; No Part Received.
[Note 2; oM:]
Ky. : 1904, Com. v. Phillips,— Ky. — , 82 S. W. 286 (the fact of finding, "together with the
statement of the accused as to their location," admitted).
1906, Com. V. Johnson, 213 Pa. 432, 62 Atl. 1064 (Laros v. Com. approved).
1904, State v. Middleton, 69 S. C. 72, 48 S. E. 35.
[Note 5; add:]
1906, State v. Moran, 131 la. 645, 109 N. W. 187 ("such facts, and so much of the confession
as distinctly relates thereto").
§ 860. Burden of Proof.
[Note 1; add:]
1905, State v. Stallings, 142 Ala. 112, 38 So. 261 (an improper decision). 1910, Green v.
State, 168 Ala. 90, 53 So. 286.
1909, Daniels v. State, 57 Fla. 1, 48 So. 747 (for statements made under arrest, it must first
clearly appear that the party was advised of his rights and spoke voluntarily).
1904, Watts V. State, 99 Md. 30, 57 Atl. 542.
1913, State v. Thomas, 250 Mo. 189, 157 S. W. 330 (for a confession taken in writing and
signed while under arrest).
But in any case the trial Court may properly be presumed to have found the necessary
preliminary facts until the opposite is shown in the record:
1905, Whatley v. State, 144 Ala. 68, 39 So. 1014.
[Note 2 ; add, under Contra :]
1904, Jenkins ». State, 119 Ga. 431, 46 S. E. 628.
[Note 4; add:]
1907, Thurman v, State, 169 Ind. 240, 82 N. E. 64. 1908, State v. Laughlin, 171 Ind. 66,
84 N. E. 756 (under St. 1905, c. 168, § 239).
1904, State v. Icenbice, 126 la. 16, 101 N. W. 273, semble.
1908, People v. Rogers, 192 N. Y. 331, 85 N. E. 135 (approving the above text).
§ 861. Judge and Jury.
[Note 2; add:]
Colo. : 1913, Harris v. People, — Colo. — , 135 Pac. 785.
1905, State v. WiUing, 129 la. 72, 105 N. W. 355, semhle.
1906, Howard v. Com., — Ky. — , 90 S. W. 578.
1906, PearsaU v. Com., — Ky. — , 92 S. W. 589.
1909, State !). WiUiams, 31 Nev. 360, 102 Pac. 974, semhle.
1906, State v. Monich, 74 N. J. L. 522, 64, Atl. 1016 (good opinion by Pitney, J. ; quoted
ante, § 1451, n. 1 ; Bullock v. State, infra, n. 3, repudiated; settling the doubt in State v.
Young, infra, n. 3). 1912, State v. Kwiatkowski, 83 N. J. L. 650, 85 Atl. 209 (following
State V. Monich).
1908, State v. Landers, 21 S. D. 606, 114 N; W. 717.
1905, Hintz v. State, 125 Wis. 405, 104 N. W. 1 10 ; Roszczynialas. State, ib. 414, 104 N. W.-113.
1906, Clay v. State, — Wyo. — , 86 Pac. 17, ,
[NoteZ; add:]
1904, Shaffer v. U. S., 24 D. C. App. 337, 385.
1905, Griner j). State, 121 Ga. 614, 49 S. E. 700.
186
QUALIFICATIONS; COMMUNICATION §862
[Note 3 — continued]
1905, State v. Wescott, 130 la. 1, 104 N. W. 341 (State v. Storms followed). 1907, State v.
Von Kutzleben, 136 la. 89, 113 N. W. 484. 1907, State v. Foster, 136 la. 527, 114 N. W. 36.
1909, State v. Bennett, 143 la. 214, 121 N. W. 1021.
1910, Toomer v. State, 112 Md. 285, 76 Atl. 118.
1885, Com. V. Preece, 140 Mass. 276, 5 N. E. 494 ("the humane practice" is for the judge, if
he admits the confession, after a conflict of evidence, to tell the jury that "they should
exclude the confession, if upon the whole evidence in the case they are satisfied that it was
not the voluntary act of the defendant").
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (Com. v. Preece approved).
1906, People v. Maxfield, 146 Mich. 103, 108 N. W. 1087.
1905, State v. Stebbins, 188 Mo. 387, 87 S. W. 460 (this opinion faces both ways).
1909, Heddendorf v. State, 85 Nebr. 747, 124 N. W. 150. ^.
1909, People v. Randazzio, 194 N. Y. 147, 87 N. E. 112 (a singular ruling).
1912, Gonzalus v. State, 7 Okl. Cr. 444, 123 Pac. 705.
1910, Com. V. Aston, 227 Pa. 112, 75 Atl. 1019.
1910, State v. Allison, 24 S. D. 622, 124 N. W. 747 (if the evidence is conflicting). 1910,
State V. Montgomery, 26 S. D. 539, 128 N. W. 718.
1909, State v. Wells, 35 Utah 400, 100 Pac. 681.
1904, State v. Washing, 38 Wash. 465, 78 Pac. 1019. 1912, State v. Wilson, 68 Wash. 464,
123 Pac. 795.
[Note 4 ; add :]
1904, Zuckerman v. People, 213 111. 114, 72 N. E. 741 (embezzlement; the judge may hear
both sides).
1913, State v. Thomas, 250 Mo. 189, 157 S. W. 336.
1908, People v. Rogers,,192 N. Y. 331, 85 N. E. 135 (but there must be a proper offer of such
evidence).
1910, Berry v. State, 4 Okl. Cr. 202, 111 Pac. 676 (approving the text above).
[Note 5; add:] '
1909, State v. Wells, 35 Utah 400, 100 Pac. 681 (the defendant is entitled to cross-examine;
but not to offer other evidence, before the ruling; the opinion, though citing some 25 cases
from other jurisdictions, does not cite its own decision in State v. Haworth).
[Note 6; add:]
1905, Griner v. State, 121 Ga. 614, 49 S. E. 700 (not error not to withdraw).
1905, State v. Stebbins, 188 Mo. 387, 87 S. W. 460.
1907, Harrold v. Terr., 18 Okl. 395, 89 Pac. 202 (Kirk v. Terr, followed).
1910, State v. Barker, 56 Wash. 610, 106 Pac. 133 (but not necessarily).
[Note 7; add:]
1909, State v. Williams, 31 Nev. 360, 102 Pac. 974.
1910, State v. Barker, 56 Wash. 510, 106 Pac. 133.
§ 862. Trial Judge's Discretion.
[Note 1; add:]
1907, Thurman v. State, 169 Ind. 240, 82 N. E. 64.
1909, State v. Berberick, 38 Mont. 423, 100 Pac. 209.
1906, State v. Monich, 74 N. J. L. 522, 64 Atl. 1016 (the only question on review is whether
there was evidence to support the trial judge's finding of admissibility). 1909, State v.
Zeller, 77 N. J. L. 619, 73 Atl. 498.
187
§862 TESTIMONIAL EVIDENCE
[Note 1 — continued]
1904, State v. Rogoway, 45 Or. 601, 78 Pac. 987, 81 Pac. 234. 1912, State v. Humphrey,
63 Or. 540, 128 Pac. 824. 1913, State d. Spanos, — Or. — , 134 Pac. 6.
1905, Hintz V. State, 125 Wis. 405, 104 N. W. 110 (as to the existence of the inducement) ;
Roszczyniala v. State, ib. 414, 104 N. W. 113.
§ 866. Value of Confessions.
[Note 7; add:]
1904, People v. Buckley, 143 Cal. 375, 77 Pac. 169.
1905, Griner v. State, 121 Ga. 614, 49 S. E. 700.
1905, State v. WilUng, 129 la. 72, 105 N. W. 355.
§ 867. Future of the Doctrine.
[Note 1, 1. 8 from the end; add:]
1846, Trailer's Case, 4 West. L. J. 25, Chicago Daily Law Bull. Dec. 14, 1904. Mr. J. F.
Geeting has a note carefully collating these cases in his edition of American Criminal Cases,
vol. 12, p. 213.
Professor Hans Gross has a valuable chapter in his "Criminal Psychology," § 8, p. 31
(transl. Kallen, in the Modern Criminal Science Series). Mr. W. M. Best's chapter, in his
"Principles of the Law of Evidence," §§ 560-573 (3d Amer. ed.), collects interesting data.
§ 876. Process of Impeachment ; Distinctions, etc.
[Text, p. 1005, 1. 5 from below; add a new note 1 :]
^ In a series of articles by Professor Hugo Miinsterberg (Professor of Psychology in
Harvard University), in the Times Magazine (N. Y.) for January and March, 1907, the
assertion is made (p. 427) that within the past few years "a new special science has grown
up," by means of which a witness could be accurately tested directly "with regard to his
memory and his power of perception, his attention and his [fiiental] associations, his volition
and his suggestibility, with methods which are in accord with the exact work of experimental
psychology" ; and the reproach is made that Courts are "still unaware" of this ; that they
"proceed as if experimental psychology, with its efforts to analyze the mental faculties,
still stood where it stood two thousand years ago"; that Courts are "completely satisfied
with the most unscientific and haphazard methods of common prejudice and ignorance when
a mental product, especially the memory report of a witness, is to be examined" ; and that
"the Courts will have to learn sooner or later" that these tests should be employed.
As to all this, a suflScient brief answer is that the Courts are ready to learn and to use,
whenever the psychologists produce it,''any method which the latter themselves are agreed is
sound, accurate, and practical. If there is any reproach, it does not belong to the Courts
or the law. A legal practice which has admitted the evidential use of the telephone, the
phonograph, the dictograph, and the vacuum-ray, within the past decade, cannot be charged
with lagging behind science. But where are these practical psychological tests, which will
detect specifically the memory-failure and the lie on the witness-stand ? Let us have proof
of general scientific recognition that they are valid and feasible. The vacuum-ray photo-
graphic method, for example, was accepted by scientists the world over, within a few months
after its promulgation. If there is ever devised a psychological test for the impeachment
of witnesses, the law will run to meet it. Both law and practice permit the calling of any
expert scientist whose method is acknowledged in his science to be a sound and trustworthy
one. Whenever the Psychologist is really ready for the Courts, the Courts are ready for
him.
Professor Miinsterberg's claims were further expounded by him in a volume entitled
"On the Witness Stand" in 1908.
188
IMPEACHMENT, IN GENERAL §901
[Text, p. 1005 — continiced]
The controversy was taken up by Mr. C. C. Moore in Law Notes, and articles by him and
Professor Miinsterberg appeared in the numbers for October and November, 1907, and
January, 1908. Another article by the learned psychologist appeared in McClure's Maga-
zine for October, 1907 (XXIX, 614).
The voluminous Continental literature on the subject was carefully examined by the present
writer, and a bibliography of it was published by him in the Illinois Law Review for February,
1909, with a summary of the criticisms tenable against the proposed methods. The general
conclusion was that they are at present of no practical service in the judicial investigation
of facts. Passages from that article and from Professor Munsterberg's book are reprinted
in the present writer's "Principles of Judicial Proof, as given in Logic, Psychology, and
General Experience, and illustrated in Judicial Trials" (Boston, 1913).
But the scientific study of testimonial psychology is undoubtedly much needed by lawyers
and judges, and the "Principles etc.," above cited, attempts to serve this need. The legal
profession should be grateful to Professor Miinsterberg for having stimulated popular inter-
est in the subject.
The Journal of Criminal Law and Criminology (31 W. Lake St. Chicago) contains notes
and articles from time to time on this subject; and a bibliography of the articles in
foreign languages, on the psychology of testimony, is prepared annually by Professor Guy
M. Whipple (formerly of Cornell University, now of the University of Illinois) and ap-
pears in tjie Psychological Bulletin.
§ 894. Impeachment of an Impeaching Witness.
[Note 2 ; at the end, add :]
1905, Dunn v. Com., 119 Ky. 457, 84 S. W. 321.
§ 898. Second Reason ; the Party guarantees Credibility.
[Text, par. (2), 1. 3 ; add a. note (1)] :
1 1906, Lasher v. Colton, 225 111. 234, 80 N. E. 122 (caUing the opponent as witness).
It is disappointing to find a recent. opinion repeating this cant formula, "The party yrho
calls a witness certifies his credibility" (1907, People v. Sexton, 187 N. Y. 495, 80 N. E. 396).
§ 900. Impeaching One's Own Witness ; Bad Character.
[Note 1 ; add :]
1905, State v. Gallo, 115 La. 746, 39 So. 1001 (but here the offer was to show the witness to
be an accomplice and hence fell rather under the principle of § 901, post).
§ 901. Bias, Interest, or Corruption.
[Note 1, under Corruption; add:]
1905, State v. Moon, 71 Kan. 349, 80 Pac. 597 (a witness had before trial told the prosecution
of the defendant's conversations planning the larceny ; on the stand, the witness denied all
these things ; on cross-examination, the prosecution was allowed to ask about them ; after
adjournment, he was arrested for perjury ; he then sent for the prosecuting attorney, and
retracted, and next day on the stand retold his story with all details as to the defendant's
subornation ; held proper, in a good opinion by Burch, J. ; this opinion is a brilliant example
of what a Court can and should do in repudiating the artificial trammels of the present rule).
[Note 1, under Bias; add:]
1910, People v. Jacobs, 243 111. 580, 90 N, E. 1092 (cross-examination of a physician as to a
letter by grand jurors criticizing him, held improper).
189
§905 IMPEACHMENT, IN GENERAL
§ 905. Prior Self-Contradictions ; Law in Various Jurisdictions.
[Note 2; add:] '
1909, Smith's Case, 2 Cr. App. 86, 106 (rape ; whether a boy whose testimony varied from
a written statement made by him to the police could be cross-examined to the statement and
the variance; not decided).
AlU.: St. 1910, 2d sess., Evidence Act, c. 3, § 23 (substantially like Eiig. St. 1854, c. 125,
§ 22, with the correction as made in P. E. I. St. 1889, c. 9, § 15).
Ont. : St. 1909, c. 43, § 20 (Hke R. S. 1897, c. 73, § 20, but correcting the phrasing as in P. E. I.
St. 1889, c. 9).
Sask. : St. 1907, c. 12, Evidence Act, § 27 (like Eng. St. 1854, c. 125, § 22).
Yukon: St. 1904, c. 5, § 40 (like Eng. St. 1854, c. 125, § 22).
[Note 3; add:]
1904, People v. Creeks, 141 Cal. 532, 75 Pac. 101 (like People v. Crespi, siipm). 1905,
People V. Cook, 148 Cal. 334, 83 Pac. 43 (cross-examination by the prosecution to several
contrary statements, allowed on the facts). 1908, Zipperlen jj. Southern Pac. Co., 7 Cal.
App. 206, 93 Pac. 1049 (allowable in case of adverse testimony surprising the attorney).
1908, Dolbeer's Estate, 153 Cal. 652, 96 Pac. 266 (declarations excluded, where there was no
surprise).
1910, State v. Marren, 17 Ida. 766, 107 Pac. 993 (witness allowed to refresh his memory from
report of his former testimony) . 1906, Chicago C. R. Co. ». Gregory, 221 111. 591, 77 N. E.
1112 (contradiction of a medical witness by his memorandum given beforeha,nd to the party,
not allowed, for impeaching him). 1909, People v. Lukoszno, 242 111. 101, 89 N. E. 749
(cross-examination allowed : ''he had a right either to refresh the memory of the witness if
he was forgetful, or to probe his conscience and move him to relent and speak the truth if he
was wilfully erring "). 1911, People v. Cotton, 250 111. 338, 95 N. E. 283 (allowing refresh-
ment of recollection, for a forgetful witness, by reference to his former testimony ; here the
forgetfulness was "intentional").
1905, Walker v. State, 165 Ind. 94, 74 N. E. 604 (statute applied, in a bastardy case, to
impeach the third person called by the defendant and said to be the father of the child).
1894, State v. KeeU, 54 Kan. 197, 201, 38 Pafc. 302 (Johnson v. Leggett followed).
1905, State v. Moon, 71 Kan. 349, 80 Pac. 597 (Johnson v. Leggett followed ; see the citation
ante, § 901). 1904, Com. v. Bavarian B. Co., — Ky. — , 80 S. W. 772 (use of former testi-
mony as evidenpe under the guise of refreshing memory is not allowable). 1906, Garrison
!). Com., 122 Ky. 882, 93 S. W. 594 (prosecution allowed to prove by other witnesses the
witness' contrary assertions). 1907, Dukesi). Davis, 125 Ky. 313, 101 S. W. 390 (rule of
C. C. P. § 596 applied).
1903, State v. Williams, 111 La. 179, 35 So. 505 (cross-examination allowed, in case of sur-
prise, to stimulate recollection). 1906, State v. Stephens, 116 La. 36, 40 So. 523 (witness for
the State ; cross-examination allowable if the purpose is to stimulate recollection, but not
"if the sole purpose ... is to discredit him, . . . unless the party offering it has been
entrapped into calling a hostile witness," and even then only when the witness affirmatively
testifies against him). 1913, State v. Robertson, 133 La. 806, 63 So. 363 (re-examination to
a self-contradiction, held not improper on the facts ; following State v. Williams).
1906, Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958 (proof of former self-contradiction,
by extrinsic testimony, admitted in the trial Court's discretion, in a case of surprise). 1906,
State V. Sederstrom, 99 Minn. 234, 109 N. W. 113 (prior inconsistent statements of the
witness to the State's attorney, allowed to be shown).
1904, Dunk v. State, 84 Miss. 454, 36 So. 609 (self-contradiction of a witness for the prose-
cution, where the State's attorney had been "neither misled nor entrapped by the witness,"
excluded ; but the ruling is erroneously put also on the ground of the imlnateriality of the
assertion, misunderstanding Williams v. State, post, § 1038). 1906, Dodd v. State, 88
Miss. 50, 40 So. 545 (Dunk v. State followed; rule of discretion applied).
190
IMPEACHMENT, IN GENERAL §907
[Note 3 — continued]
1905, Clancy v. St. Louis T. Co., 192 Mo. 615, 91 S. W. 509 (rule of State v. Burks, supra,
applied). 1906, Beier v. St. Louis T. Co., 197 Mo. 215, 94 S. W. 876 (a witness who had
been subpcenaed by both parties, but introduced by the defendant only, and whose memory
failed on various points covered by a written statement made by him two years before;
the written statement not allowed to be put in evidence, no entrapment being shown).
1914, State v. Patton, — Mo. — , 164 S. W. 223 (method of refreshment of memory of State's
witness as to his own former testimony, where the prosecutor is now surprised, carefully pre-
scribed , so as to prevent a substitution of the former testimony instead of a mere refreshment) .
1908, First National Bank v. State, 80 Nebr. 597, 114 N. W. 772 (allowable to "elicit the
truth from a confused or unwilling witness"). 1910, Masourides v. State, 86 Nebr. 105,
125 N. W. 132 (allowing the whole former statement to be read to the jury, held improper).
1913, State v. D'Adame, 84 N. J. L. 386, 86 Atl. 414 (" where the specific testimony comes
as a surprise, such an attack is admissible")'.
1913, State v. Kysilka, 84 N. J. L. 6, 87 Atl. 79 (similar).
1906, State v. Johnson, 73 N. J. L. 199, 63 Atl. 12 (prior self-contradiction, allowed to be
shown on cross-examination, on the ground of surprise ; the foregoing precedents ignored,
and none others cited).
1906, Terr. v. Livingston, 13 N. M. 318, 84 Pac. 1021 (rule in Hickory ». U. S. ; why did
not the Com-t cite and follow the rule of its own statute, which is broader?).
1909, Sturgis v. State, 2 Okl. Cr. App. 362, 102 Pac. 57 (prosecution is allowed to cross-
examine the witness and to prove by others the self-contradictions, where the witness had
surprised the attorney by altering his expected testimony ; but here surprise was negatived ;
leading opinion by Furman, Pj J.).
1906, State v. Jennings, 48 Or. 483, 87 Pac. 524 (proof by other testimony, allowed).
1908, Com. ■!!. Deitrick, 221 Pa. 7, 70 Atl. 275 (admitted, without restriction).
1913, Barker v. Rhode Island Co., 35 R. I. 406, 87 Atl. 174 (interrogation allowed in case of
surprise; in the trial Court's discretion).
1904, State v. Callahan, 18 S. D. 145, 99 N. W. 1099 (cross-examination to prior testimony,
forbidden ; rule obscure ; the opinion takes no note of the difficulties of the subject).
1905, Dallas C. E. St. R. Co. v. McAllister, 41 Tex. Civ. App. 131, 90 S. W. 933. 1907, Skeen
V. State, 51 Tex. Cr. 39, 100 S. W. 770 (rape ; after the prosecuting witness' denial of the
intercourse charged, the prosecution was not allqwed to prove her prior affirmation of it).
1896, Putnam s. U. S., 162 U. S. 687, 16 Sup. 923 (cited ante, § 761, n. 5 ; this case confuses
several principles, and should have no weight).
1904, Portsmouth St. R. Co. u. Feed's Adm'r, 102 Va. 662, 47 S. E. 850 (allowable to rdresh
but not to contradict ; statute not cited). 1905, McCue v. Com., 103 Va. 870, 49 S. E. 623
(statute held applicable to criminal cases).
1909, State v. Montgomery, 56 Wash. 443, 105 Pac. 1035 (prosecuting attorney's treatment
of a rape-witness who testified contrary to her original story to him, held improper on the
facts).
Compare also the cases post, §§ 1020-1043 (self-contradiction in general).
§ 906. Rules for Party's Admission, etc.
[Note 3; add:]
and post, § 916.
' ' § 907. Contradiction by Other Witnesses.
[Note 5 ; add, under Canada:] .
1904, R. J). Hutchinson, 11 Br. C. 24, 32.
1913, Schwartz «. Winnipeg E. R. Co., Man. C. A., 9 D. L. R. 708, 717, per Haggart, J. A. ;
Yukon St. 1904, c. 5, § 40.
191
§907 IMPEACHMENT, IN GENERAL
[Note 7; add:]
1909, Dumas v. Clayton, 32 D. C. App. 566.
1904, Moultrie Repair Co. v. Hill, 120 Ga. 730, 48 S. E. 143.
1913, Cochburn v. Hawkeye C. M. Ass'n, — la. — , 143 N. W. 1006.
1907, Taber v. New York P. & B. R. Co., 28 R. I. 287, 67 Atl. 8.
1906, Mississippi Glass Co. v. Franzen, 143 Fed. 501, C. C. A.
1905, Jennet v. Patten, 78 Vt. 69, 62 Atl. 33.
1904, Stout V. Sands, 56 W. Va. 663, 49 W. Va. 428.
1909, Halwas v. American Granite Co., 141 Wis. 127, 123 N. W. 789.
§ 908. Contradiction as involving Impeachment.
[Note 2; add:]
1912, Midland Valley R. Co. v. LeMoyne, 104 Ark. 327, 148 S. W. 654.
[Note 3; add:]
It is surprising to find nowadays such a remark as the following : "The defendant having
been called by the plaintiff as an adverse witness under the statute, the plaintiff was not
bound by his testimony, and so the jury could accept the facts testified to by him [the de-
fendant] and disbeheve the explanations" : 1909, Anderson v. Middlebrook, 202 Mass. 506,
89 N. E. 157. Even if the witness had not been the adverse party, the plaintiff would not
be "bound" by his testimony and the jury need not believe any more of it than they saw
fit.
§ 912. Impeachment by Second Caller ; Deposition.
[Note 2; add:]
1876, Fountain's Adm'r v. Brown, 56 Ala. 558.
Cal. St. 1907, c. 392, p. 731, Mar. 20, § 2 (like C. C. P. § 2034; adding a new § 2022).
1911, People's National Bank v. Hazard, 231 Pa. 552, 80 Atl. 1094.
§ 913. Impeachment by First Caller.
[Note 1, par. 1 ; add, under Accord:]
1906, Johnston v. Marriage, 74 Kan. 208, 86 Pac. 461 (negligent setting of fire ; an employee
of defendant, called by the plaintiff, was afterwards called by the defendant on the same
subject; the plaintiff's impeachment o^ him by self-contradictions was forbidden, there
being "no special circumstances which would make the rule's application work an in-
justice").
1913, State v. Alexander, 89 Kan. 422, 131 Pac. 139.
1908, Baltimore & 0. R. Co. v. State, 107 Md. 642, 69 Atl. 439.
§ 914. Making a Witness One's Own by Cross-Examination.
[Note 1 ; add :]
Contra: 1912, Renn v. State, 64 Tex. Cr. 639, 143 S. W. 167, sembk (Davidson, P. J.,
diss.).
Accord : 1909, Lambert ». Armentrout, 65 W. Va. 375, 64 S. E. 260 (opinion by Brannon, J.,
regretting that such is the rule). 1912, McGuire v. Norfolk & W. R. Co., 70 W. Va. 538,
74 S. E. 859.
[NoteS; add:]
1874, Hatch v. Brown, 63 Me. 410, 416.
192
IMPEACHMENT, IN GENERAL §916
§ 915. Leading Questions.
[Note 1, at the end ; aM :]
Contra: 1913, Anderson v. Berram, — Nev. — , 136 Pac. 973.
§ 916. Calling the Other Party as Witness.
[Note 2; add:]
Manit. St. 1906, 5 & 6 Edw. VII, c. 17, § 2 (amends Rev. St. 1902, c. 40, by adding Rule
460A, quoted poat, § 1890, n. 3).
1908, Purse v. Purcell, 43 Colo. 60, 95 Pac. 291 (the permission by statute to call the opponent
does not limit the scope of allowable cross-examination when the opponent is taking the
stand for himself).
1905, Carney v. Hennessey, 77 Conn. 577, 60 Atl. 128 (plaintiff called by defendant,
allowed to be impeached by prior self-contradiction).
1909, Dumas v. Clayton, 32 D. C. App. 566 ("may be treated as witnesses on cross-examina-
tion").
Ida. St. 1909, p. 334, Mar. 13 (party or beneficiary, or agent etc. of corporate party, "may
be examined by the adverse party as if under cross-examination, subject to the rules appli-
cable'to the examination of other witnesses, and the testimony given by such witnesses may
be rebutted by the party calling him for such examination by other evidence ; such witness
■when so called may. be examined by his own counsel, but only as to matters testified to on
such examination"). 1913, Burrow v. Idaho & W. N. R. Co., 24 Ida. 652, 135 Pac. 838
(locomotive engineer of the defendant, held not within the statute).
111. St. 1905, May 18 (Municipal Court), § 33 (a party "may be examined upon the trial
thereof as if under cross-examination" at the instance of the adversary, and is compellable,
"in the same manner and subject to the same rules for examination as any other witness, to
testify," but the calling party is not concluded but may rebut).
La. St. 1908, No. 126, p. 185, July 2 (opponent may be examined "as under cross-examina-
tion," and the examiner "shall not be held as vouching to the Court for the credibiUty of
the opponents so placed on the stand or as estopped from impeaching in any lawful way the
testimony given").
1904, Emerson v. Wark, 185 Mass. 427, 70 N. E. 482 (the proponent of a will was called by
the contestant as a witness ; held, that under Rev. L. c. 175, § 24, an instruction that
"in putting him on, they put him before you as a person entitled to be beUeved" was
erroneous).
1908, Reed v. Mattapan D. & T. Co., 198 Mass. 306, 84 N. E. 469 (an officer of an opponent
corporation is not a party, under this statute).
1909, Anderson v. Middlebrook, 202 Mass. 506, 89 N. E. 157 (see the comment ante, § 908,
note 3).
1911, Cobb, B. & Y. Co. v. Hills, 208 Mass. 270, 94 N. E. 265 (statute applied).
Mich. St. 1909, No. 307, p. 753, June 2 (when the opposite party, his agent etc., is called, the
calling party may "cross-examine such witness the same as if he were called by the opposite
party ; and the answers of such witness shall not interfere with the right of such party to
introduce evidence upon any issue involved in such suit , or proceeding, and the party
so calUng and examining such witness shall not be bound to accept such answers as
true").
1899, Bennett v. Lumber Co., 77 Minn. 198, 79 N. W. 682 (under the words of the statute,
the "directors, officers, superintendents, or managing agents" of a corporation include the
superintendent of a saw-mill).
1905, Davidson S. S. Co. v. U. S., 142 Fed. 315, C. C. A. (under Minn. Gen. St. 1894, § 5659,
supra, the master of a vessel owned by a corporation is included).
1906, Sharp v. Erie Co., 184 N. Y. 100, 76 N. E. 923 (plaintiff held not bound by the state-
ments on cross-examination of an agent of defendant called by the plaintiff).
193
§916 IMPEACHMENT, IN GENERAL
[Note 2 — continued]
N. C. Code 1883, § 580 (a paxty opponent may be compelled to testify "subject to the same
rules of examination as any other witness"); Rev. 1905, §§865,868 (like Code 1883,
§§ 580, 583).
N. D. St. 1907, c. 21, p. 3 (Rev. C. 905, § 7252, amended in unspecified details). St. 1909,
c. 72, p. 128 (similar to Del. L. 1859; adding, "Such witness, when so called, may be ex-
amined by his own counsel, but only as to matters testified to on such examination";
officers of corporations included).
Oh. St. 1910, p. 139, Apr. 28 (amending Gen. Code § 11497 ; officers of a corporation maybe
so examined).
Pa. St. 1911, Mar. 30, p. 35 (amending St. 1887, May 23, § 7, Witnesses, permitting cross-
examination of officers of a corporation, etc.).
1904, Jacobs v. Van Sickle, 127 Fed. 62, 61 C. C. A. 598 (Dravo v. Fabel followed, in a
chancery case).
1908, Thomas v. Fos, 51 Wash. 250, 98 Pac. 663 (impeachment by self-contradiction, per-
mitted).
Wis. St. 1907, c. 271 (amending Stats. § 4068). 1910, Keena v. American Box Toe Co.,
144 Wis. 231, 128 N. W. 858 (question raised whether the discrimination of the statute,
applying to corporation employees only, is constitutional). 1911, Makar v. Montello G.
Co., 146 Wis. 46, 130 N. W. 949 (similar). St. 1911, c. 291, p. 299 (amending Stats. § 4068,
as to officers and agents of a corporation and officers of a municipality). 1911, O'Day v.
Meyers, 147 Wis. 549, 133 N. W. 606 (a nominal co-defendant may be examined as an
adverse party by his co-defendant, under Stats. 1898, § 4068).
[Note 3; add:]
1907, Sullivan v. Fugazzi, 193 Mass. 518, 79 N. E. 775 (consolidated actions by S. against F.
and against R. Co. ; rule for such a case examined).
[Text, p. 1052, 1. 5 ; add a new par. (5) :]
(5) Where a party, called for himself, is cross-examined by the opponent to
his own case, the opponent may impeach by self-contradictions, which are
here the party's admissions.^
5 1909, Lambert v. Armentrout, 65 W. Va. 375, 64 S. E. 260.
§ 917. Necessary Witness.
[Note 1; add:]
The following situation is analogous :
The Cardiff, [1909] P. 183 (collision, alleged by defendant vessel to be the fault of the pilot ;
neither side calling him, the pilot was offered the choice to give evidence, then both sides
to cross-examine him).
§ 918. Prosecution's Witness.
[Note 1; add:]
1803, R. V. Oldroyd, R. & R. 88 (cited ante, § 905, n. 1).
[Note 2; add:]
1905, State v. Gallo, 115 La. 746, 39 So. 1001 (rule held equally applicable to the
State).
1908, Com. V. Deitrick, 221 Pa. 7, 70 Atl. 275 (not decided ; but the doctrine favored).
194
IMPEACHMENT; CHARACTER § 923
[Note 3; add:]
1912, People v. Baskin, 254 111. 509, 98 N. E. 957 (rule in Carle v. People approved). ' '
1912, People v. Rardin, 255 111. 9, 99 N. E. 69 (similar).
But even this expedient is subjected to too much restriction, as the cases there cited
show. It is time that we abandoned the absurd rigor of the rule against impeachment.
§ 921. Relevancy and Auxiliary Policy; their DiSerent Bearings.
[Text, p. 1058, at the end of the section; add:] ^
1900, Hon. J. F. Daly, in "The Brief," III, 15 : " In my experience and that of many
judges there has been no successful impeachment of a witness by proof of bad reputation.
There is something distasteful to the average juryman in, the 'swearing away a man's
character ' ; and the general feeling in that regard is evidenced by the reluctance, on the
one hand, of witnesses to come forward and testify that they would not believe a witness
under oath, and the readiness, on the other hand, with which all a man's acquaintances
hasten to his support. . . . The advice to clients should be : Do not attempt to impeach
the character of an adversary or a witness unless you are absolutely certain there is no
character to impeach."
§ 923. Kind of Character ; Rule in Various Jurisdictions.
[Note 5; add:]
1904, Ross V. State, 139 Ala. 144, 36 So. 718 (general character, but not character for tur-
bulence, allowed).
Ark. St. 1905, c. 52 (amends the above statute by substituting "morality" for "immorality ").
1906, Maloy v. State, 52 Fla. 101, 41 So. 791 (manslaughter; accused's character for verac-
ity, admitted).
Ind. St. 1905, p. 584, § 239 (foregoing statute re-enacted).
1904, State v. Haupt, 126 la. 152, 101 N. W. 739 (prosecutrix in seduction). 1913, Hunt
V. Waterloo C. F. & N. R. Co., — la. — , 141 N. W. 334 (veracity-character admissible ;
Code §§ 4613, 4614, admitting general character, is not exclusive).
1913, LouisviUe & N. R. Co. v. Scalf, 155 Ky. 273, 159 S. W. 804 (same). 1904, Helm v.
Com., — Ky. — , 81 S. W. 270 (general moral character, admitted). 1905, Newman v.
Com., — Ky. — , 88 S. W. 1089 (character for peace and quiet of a defendant taking the
stand, excluded ; "his character for truthfulness, or his general moral character," might
have been shown).
1906, State v. Baudoin, 115 La. 837, 40 So. 239 (assault with intent to kill ; prosecuting wit-
ness' character for chastity, excluded). 1906, State v. Romero, 117 La. 1003, 42 So. 482 (a
woman's character for unchastity, not admissible).
1893, People v. Mills, 94 Mich. 630, 54 N. W. 488 ("lack of chastity cannot be used to im-
peach the credibility of a female witness"). 1904, People v. Wilson, 136 Mich. 298, 99
N. W. 6 (bastardy ; the woman's character for unchastity, excluded).
1913, Alabama & V. R. Co. v. Thornhill, — Miss. — , 63 So, 674 (Smith v. State followed).
1900, State v. Evans, 158 Mo. 609, 59 S. W. 994 (defendant's general moral character,
admissible). 1905, State v. Woodward, 191 id. 617, 90 S. W. (similar). 1906, State v.
Beckner, 194 id. 281, 91 S. W. 893 (murder ; defendant's character for violence ; excluded
only general bad moral character can be used; prior decisions reviewed). 1906, State v.
Richardson, 194 Mo. 326, 92 S. W. 649 (State v. Beckner followed ; but the defendant's
character for turbulence may be used, on the principle of § 58, ante, if he has first offered his
character for peaceableness). 1906, York v. Everton, 121 Mo. App. 640, 97 S._W.604
(reputation for unchastity, admitted ; here, against a woman, though the rule is laid down
for "both male and female witnesses"; but why should the Court rest this on State v.
Sibley, supra f). 1908, State v. Oliphant, 128 Mo. App. 252, 107 S. W. 32 (illegal liquor
195
§923 IMPEACHMENT; CHARACTER
[Note 5 — continued]
sales ; defendant's repute as a violator of the liquor law, admitted against him as a witness
following State v. Beckner; Johnson, J., expressing dissatisfaction with the rule; but
might not the learned judge push his skepticism a Uttle further, and ask whether the char-
acter rule itself is so sacred? And should not an habitual offender's character always be
admissible?). 1908, Imboden's Estate, 128 Mo. App. 555, 107 S. W. 400 (only character
for truth and veracity admitted ; purporting to follow State v. Pollard, and ignoring State
V. Becker). . 1908, State v. Baker, 209 Mo. 444, 108 S. W. 6 ("truth and veracity as an
average negro," held proper in subject but not in fbrm, — whatever that may mean).
1908, State «. Priest, 215 Mo. 1, 114 S. W. 949 (general moral character, admissible). 1913,
State V. Wellman, 253 Mo. 302, 161 S. W. 795 (crime against nature ; that the defendant,
who had testified, had the repute of committing crimes of the sort ; excluded, distinguishing
State V. Beckner and State v. Pollard).
1904, Com. V. Williams, 209 Pa. 529, 58 Atl. 922 (preceding cases approved).
1906, Powers v. State, 117 Tenn. 363, 97 S. W. 815 (homicide; defendant's character for
violence, not admitted to impeach him as a witness ; purporting to follow State v. Beckner,
Mo., supra, but obsciu-e as to the precise rule laid down).
1905, State v. Stimpson, 78 Vt. 124, 62 Atl. 14 (rape under age ; the woman's character as a
prostitute excluded).
1906, State v. Detwiler, 60 W. Va. 583, 55 S. E. 654 (rape; prosecutrix' character for
chastity, not admitted to impeach credibility).
For the use of the woman's character for chastity, in rape, and bastardy, compare §§ 62,
68, ante, and § 987, post.
§ 925. Accused's Character as Witness and Party.
[Note 1; add:]
1913, Paxton v. State, — Ark. — , 157 S, W. 396 ("general reputation" admitted).
1907, Chnton v. State, 53 Fla. 98, 43 So. 312.
1904, People v. Albers, 137 Mich. 678, 100 N. W. 908 (perjury; an offer of defendant's
character for veracity, held improperly excluded, though the defendant had not taken the
stand, because it was relevant to the charge of perjury ; although the offering counsel did
not specify that it was for the latter purpose).
1908, People v. Hinksman, 192 N. Y. 421, 85 N. E. 676 (rule applied to exclude testimony
of bad reputation in rebuttal, after the defendant had admitted a prior conviction and pro-
tested that he had "been a good boy ever since").
1908, State v. Cloninger, 149 N. C. 567, 63 S. E. 154 (rule appUed to specific acts brought
out on cross-examination).
§ 928. Prior Character ; Competing Rules.
[Note 1; add:]
1904, People v. Nunley, 142 Cal. 441, 76 Pac. 45 (reputation in a place twelve miles away,
two years before, where he had lived, admitted in rebuttal).
1904, AJford v. State, 47 Fla. 1, 36 So. 436 (character some years before, admitted on the
facts).
1910, Kennedy v. Modern Woodmen, 243 111. 560, 90 N. E. 1084 (character ten years before
the trial in another town, admitted).
1909, Brown's Will, 143 la. 649, 120 N. W. 667 (reputation in another town five years before
admitted).
1906, State v. Simmons, 74 Kan. 799, 88 Pac. 57 ("No hard and fast rule" can be laid down).
1905, Craft v. Barron, — Ky. — , 88 S. W. 1099 (character in Kentucky, ten years before,
and in' California at the time of trial, admitted in the Court's discretion).
1912, State v. Albanes, 109 Me. 199, 83 Atl. 548 (accused's character in a town 10 years ago,
196
IMPEACHMENT; CHARACTER §934
[Note 1 — continued]
held not improperly excluded in discretion, character in the town of residence for the 10
years preceding the homicide having been admitted).
1907, People v. Mix, 149 Mich. 260, 112 N. W. 907 (reputation in two near-by towns for a
period more than two years prior, admitted, approving the text above, and distinguishing
Webber v. Hanke).
1905, State v. Bryant, 97 Minn. 8, 105 N. W. 974 (reputation not allowed to be proved, in
the trial Court's discretion, by one who had known the witness since youth, but had not
heard his reputation mentioned for four years).
1905, State «. Shouse, 188 Mo. 473, 87 S. W. 480 (excluding the accused's character in Ten-
nessee seven or eight years before). 1909, Lindsay v. Bates, 223 Mo. 294, 122 S. W. 682
(character in a place where witness had always lived up to three years before trial,
admitted) .
1907, People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718 (Sleeper v. Van Middelsworth,
supra, followed).
§ 932. Insanity.
[i\^otel, 1. 22; add:]
Contra: 1912, People ». Enright, 256 111. 221, 99 N. E. 936 (an astonishing decision).
§ 933. Intoxication.
[Note 1 ; add :]
1905, Morris v. State, — Ala. — , 39 So. 608 (at the time of the affray).
1913, People v. Salladay, — Cal. App. — , 135 Pac. 508 (intoxication for a period of 16 days,
including the day in controversy, admissible).
1905, Shaxpton v. Augusta & A. R. Co., — Ga. — , 51 S. E. 553 (intoxication at the time of
the injury, admitted).
1905, Miller v. People, 216 111. 309, 74 N. E. 743 (intoxication at the time of testifying may
be shown).
1908, Pittsburgh C. C. & St. L. R. Co. v. O'Conner, 171 Ind. 686, 85 N. E. 969.
[Note 2; add:]
^ 1904, Woods V. Dailey, 211 111. 495, 71 N. E. 1068 (cumulative evidence of intemperate
habits, here excluded).
1903, State v. Castle, 133 N. C. 769, 46 S. E. 1 (that the accused, who testified, "drank
liquor," excluded, the proof not relating to the time of the homicide or of testifying).
§ 934. Disease, Age, etc.
[Note 1 ; add :]
Contra: 1909, Cannon v. Terr., 1 Okl. Cr. 600, 99 Pac. 622 (that the witness was a "dope
fiend"; ruUng not clear).
Accord: 1914, Wilson v. U. S., — U. S. — , 34 Sup. 347 (use of morphine in general and
during the trial, admitted).
«
[Note 1 ; add, in a new paragraph :]
Hypnotism may here have a bearing : 1905, State v. Exum, 138 N. C. 599, 50 S. E. 283,
semhle (that defendant had occasionally hypnotized his wife, now testifying for him, allowed
on cross-examination). So, too, the habitual use of cocaine; Contra: 1904, WiUiams «.
U.,S., 6 Ind. Terr. 1, 88 S. W. 334 (unless the witness is under its influence when examined,
or is expressly shown to be affected in his faxiulties).
197
§934 IMPEACHMENT; CHAEACTER
[Note 2; add:]
1905, Mathison v. State, 87 Miss. 739, 40 So. 801 (near-sightedness of an eye-witness to a
homicide).
§ 935. Religious Belief.
[Note 4k; add:]
Pa. St. 1909, No. 90, p. 140, § 3 (quoted pod, § 1828).
[Note 5, par. 1 ; add:]
1882, Bush V. Com., 80 Ky. 244 (the Constitutional provision "was intended to prevent
any inquiry into that belief" as affecting credibility).
1904, Louisville & N. R. Co. v. Mayes, — Ky. — , 80 S. W. 1096 (foregoing case followed).
For the privilege against disclosing religious belief, see post, § 2214.
§ 936. Race.
[Note 1; add:]
1910, State v. Lem Woon, 57 Or. 482, 107 Pac. 974 (revengeful trait of Chinese in a factional
feud, not admitted ; approving the text above at § 516).
§ 944. Cross- Ezanunation ; Broadness of Scope.
[Note 1 ; add :]
1905, Birmingham R. & E. Co. v. Mason, 144 Ala. 387, 39 So. 590.
1903, Porter v. People, 31 Colo. 508, 74 Pac. 879.
1905, Smith v. State, 165 Ind. 180, 74 N. E. 983.
Ky. C. C. P. 1895, § 593 (quoted ante, § 981, n. 4).
Ifl04, Fuqua v. Com., 118 Ky. 578, 81 S. W. 923.
1906, Greer v. Union St. R. Co., 193 Mass. 246, 79 N. E. 267. ,
1906, State v. Standard Oil Co., — Mo. — 91 S. W. 1062.
1905, State v. Foster, 14 N. D. 561, 105 N. W. 938.
1905, Guthrie v. Carey, 15 Okl. 276, 81 Pac. 431.
'1905, State ». Sauls, 70 S. C. 393, 50 S. E. 17.
1905, WorreU v. Kinnear, 103 Va. 719, 49 S. E. 988.
1913, Miller v. Peaice, — Vt. — , 85 Atl. 588.
§ 946. Demeanor of a Witness.
[Note 1; add:] .
1904, Hauser v. People, 210 111. 253, 71 N. E. 416.
Compare the rule for an accused's demeanor during trial {ante, § 274).
§ 949. Relationship, etc., as Evidence of Bias.
[Note 2; add:]
1906, R. V. Finnessey, 11 Ont. L. R. 338 (similar to Thomas v. David, supra; cited more
fully post, § 986, n. 11).
1905, Funderburk v. State, 145 Ala. 661, 39 So. 672 (rape ; marital separation of the woman's
brother-in-law, testifying for the defendant, allowed to be shown for the State).
1905, Rawlins v. State, 124 Ga. 31, 52 S. E. 1 (hostility between the families of deceased
and accused).
198
IMPEACHMENT; BIAS, ETC., FROM CONDUCT §949
[Note 2 — continued]
1906, Perdue v. State, 126 Ga. 112, 54 S. E. 820 (paramour of the defendant).
1904, State v. Harness, 10 Ida. 18, 76 Pac. 788 (rape ; illicit relations of the woman's sister
with a third person, admitted to show the sister's motives for her testimony).
[NoteS; add:]
1904, Adkinson v. State, 48-Fla. 1, 37 So. 522 (questions as to the witness' daughter's illicit
relations with the defendant's brother, excluded).
1911, People V. Goodrich, 251 111. 558,96 N. E. 542 (embezzlement of Mrs. M.'s money;
cross-examination of Mrs. M. by defendant's counsel as to her past improper relations with
defendant, excluded, though the Court would have held it admissible had Mrs. M. been
called for the defendant ; erroneous, and queer in its notion of human nature).
1904, Hogen v. Klabo, 13 N. D. 319, 100 N. W. 847 (pecuniary relations of plaintiff and his
principal witness, admitted).
1911, Henry v. State, 6 Okl. Cr. 430, 119 Pac. 278 (murder; that the witness for the State,
wife of defendant, was Uving apart from him, as paramour of the deceased, admitted).
[Note 4, par. 1 ; add :]
1905, People v. Cowan, 1 Cal. App. 411, 82 Pac. 339 (membership in the same miners'
union).
1909, McMahon v. Chicago City R. Co., 239 111. 334, 88 N. E. 223 (how many times the
appellant deiendant's medical expert had testified for "the street car lines of Chicago,"
held too broad since the question should have been limited to the "number of times the
witness had testified for the appellant" ; unsound).
1904, Gregorys. Detroit U. R. Co., 138 Mich. 368, 101 N. W. 646 (here the Court commits
the error of ruling that "there must be something in the testimony itself or in the manner
of the witness to justify the conclusion" of bias; yet the Com"t has no right to control the
jury's inferences of bias by some rule of law ; the simple fact that the witness is the father
or husband or sm-ety or employee of a party may be given just as much or as little weight as
the jiu-y please in affecting their trust of the testimony; this opinion exhibits a radical
misapprehension of the common-law theory of testimony on a jury-trial; instructions of
any sort to the jury on such subjects are out of place).
1910, Genest v. Odell Mfg. Co., 75 N. H. 509, 77 Atl. 77 (that a physician-witness was
employed by the insurer of the defendant, admitted).
1913, Johnson v. Seaboard A. L. R. Co., 163 N. C. 431, 79 S. E. 690 (that the witness,, an
employee of defendant, had come to trial on a free pass given by the defendant, allowed).
1903, Wabash S. D. Co. v. Black, 126 Fed. 721, 726, 61 C. C. A. 639 (physician).
[Note 6; add:]
1906, Glass v. State, 147 Ala. 50, 41 So. 727 (quarrel over a former indictment, admitted).
[Note 7 ; add, under Accord :]
1904, Smith v. State, 48 Fla. 307, 37 So. 573 (murder ; indictment against defendant for
stealing the deceased's cattle, admitted).
1909, Dotterer v. State, 172 Ind. 357, 88 N. E. 689 (assault and battery ; an alleged accom-
plice was allowed to be impeached as to bias by a judgment of conviction for his part in
the battery, and to discredit his denial that he was not present at the batter^).
[NoU8; add:]
1886, State v. Henderson, 29 W. Va. 147, 159, 1 S. E. 225 (that certain witnesses for the
prosecution were indebted to the prosecuting witness, not allowed even on cross-examination ;
unsound).
199
§950 IMPEACHMENT; BIAS, ETC., FROM CONDUCT
§ 950. Expressions and Conduct as Evidence of Bias.
. [Note 5; add:]
1909, Grayson v. State, 162 Ala. 83, 50 So. 349 (carrying concealed weapon ; that the prose-
cuting witness had once before caused the defendant to be searched for a weapon, admitted).
1905, Creeping Bear v. State, 113 Tenn. 322, 87 S. W. 653 (soliciting against a pardon for
defendant).
[Note 6; add:]
1904, Hanners v. State, 147 Ala. 27, 41 So. 973 (threats). 1906, Vaughn s.'State, 52 Fla.
122, 41 So. 881 (threats to kill). 1908, Telfair v. State, 56 Fla. 104, 47 So. 863 (expressions
of hostility). 1909, Stewart v. State, 58 Fla. 97, 50 So. 642 (threats against defendant by
a witness for the prosecution).
1909, Stockham v. Malcolm, 111 Md. 615, 74 Atl. 569 (that the plaintiff-witness would
"spend 150,000 to whip the defendant in court," admitted).
1904, People v. Rice, 136 Mich. 619, 99 N. W. 860 (helping to secure a conviction).
1913, State v. Horton, 247 Mo. 657, 153 S. W. 1051 (threats by a witness who was mother
of the prosecutrix in rape).
§ 951. Details of a Quarrel on Cross-Examination.
[NoU2; add:]
1877, Fincher v. State, 58 Ala. 215, 219 (extent of hostility may be inquired into).
1905, McDuffie v. State, 121 Ga. 580, 49 S. E. 708 (details excluded ; citing the intervening
rulings).
1904, Nordgren v. People, 211 111. 425, 71 N. E. 1042 (wife-murder by poison; the deceased's
sister, being asked as to reasons for bias, answered that she disliked accused because he
poisoned her sister ; held erroneous ; the ruling is indefensible, because the cross-examiner
himself called for a specific answer).
1910, People v. Strauch, 247 111. 220, 93 N. E. 126 (criminal libel; the plaintiff having ad-
mitted hostile feelings, it was held not improper to forbid questions on cross-examination as
to the plaintiif's having called the defendant a "perjurer," and having'published a vituper-
ative letter about the defendant ; the opinion on the latter point states the rule too strongly
in implying that prior utterances by the complainant in a libel charge are always inad-
missible, even to show his bias).
1905, Seymour v. Bruske, 140 Mich. 244, 103 N. W. 613.
1905, State v. Malmberg, 14 N. D. 523, 105 N. W. 614 (details of political rivaby, etc.,
allowed in discretion ; good opinion by Engerud, J.).
1911, Richardson v. Gage, 28 S. D. 390, 133 N. W. 692 (whether the plaintiff-witness had
assaulted the opponent; not decided).
1906, State v. Baird, 79 Vt. 257, 65 Atl. 101 (details excluded, in the trial Court's discretion).
§ 952. Explaining Away, etc. ; Details on Re-Examination.
[Note 1 ; add :]
1908, Strong v. State, 85 Ark. 536, 109 S. W. 536 (bias explained away by threats ; cited
more fully ante, § 280).
1906, Lenfest v. Robbins, 101 Me. 176, 63 Atl. 729 (trespass for assault; the defendant
allowed on re-examination to explain that the hostility "was not on his side").
Compare the rule for party's hostility {ante, § 396).
[Note 3; add:]
1908, State v. Kight, 106 Minn. 371, 119 N. W. 56'.
Distinguish the application of the rule for details of employment creating interest {post,
§ 696), as in State v. Bean, 77 Vt. 384, 60 Atl. 807 (1905).
200
IMPEACHMENT; BIAS, ETC., FROM CONDUCT §961
§ 953. Preliminary Inquiry to Witness.
[Ndte 1; add:]
1904, Alford v. State, 47 Fla. 1, 36 So. 436 (not necessary).
1907, Goss V. Goss, 102 Minn. 346, 113 N. W. 690 (not decided).
1912, People v. Lustig, 206 N. Y. 162, 99 N. E. 183 (not necessary).
1905, State v. Bardelli, 78 Vt. 102, 62 Atl. 44 (same).
§ 957. Willingness to Swear Falsely.
[Note 1 ; add :]
1907, State v. Caron, 118 La. 349, 42 So. 960 (whether he had said that he would swear to
anything that would help his brother, held allowable).
§ 958. Offer to Testify Corruptly.
[Note 1 ; add, under Admitted :]
1895, Alward v. Oakes, 63 Minn. 190, 65 N. W. 270 (letters "evincing a corrupt disposition
to make his testimony in this case depend upon the pecuniary or other valuable considera-
tion," etc., admitted).
1905, Hathaway 'v. Goslant, 77 Vt. 199, 59 Atl. 835 (question as to an offer for money to
leave the State, when a witness in another suit, allowed in discretion).
§ 959. Confession that Testimony was False.
[Note 1, par. 11 ; add, under Exclvded:]
1905, State v. Wells, 33 Mont. 291, 83 Pac. 476 (cross-examimng a witness who has identified
his former testimony, "Is that testimony true or false?" not allowed; unsound). The
pedantic error of such" rulings can be seen by comparing the marvellously successful use of
such a cross-examination by Sir Charles Russell with Pigott in the Parnell Case (quoted
post, § 1260).
§ 960. Attempt to Suborn Another Witness.
[Note 1; add:]
1909, Com. V. Min Sing, 202 Mass. 121, 88 N. E. 918 (attempted subornation, admissible
"to show his bias and affect his credibiUty ").
1913, Burnaman v. State, — Tex. Cr. — , 169 S. W. 244 (here the special controversy was
whether the rule applied to admit a corrupt attempt by the accused's brother who was
a witness ; properly held admissible, Davidson, P. J., diss, on the ground that the dominant
purpose of the evidence was that purpose forbidden by § 280, ante).
§ 961. Receipt of Money, etc.
[Note 2; add:]
1904, Parrish v. State, 139 Ala. 16, 36 So. 1012 (whether he paid his own travel expenses ;
held properly disallowed). 1904, Southern R. Co. v. Morris, 143 Ala. 628, 42 So. 17 (but
payment of charges already due is not admissible).
1906, Kansas C. S. R. Co. v. Belknap, 80 Ark. 587, 98 S. W. 363 (that the witnesses of de-
fendant received free transportation, allowed).
1910, People v. Tomalty, 14 Cal. App. 224, 111 Pac. 513 (the fact of frequent employment
as expert by one party may be inquired into, but not the details of amounts).
1904, Chicago City R. Co. v. Handy, 208 111. 81, 69 N. E. 917 (that an expert medical wit-
ness is to receive more than the statutory fee, and that he is frequently employed as such by
201
§961 IMPEACHMENT; BIAS, ETC., FROM CONDUCT
[Note 2 — contimied]
one of the litigants, allowable). 1904, Chicago & E. I. R. Co. v. Schmitz, 211 111. 446, 71
N. E. 1050 (that the witness was interested as a medical man in similar suits against other
corporations, excluded). 1909, West Skokie Draifaage District v. Dawson, 243 111. 175, 90
N. E. 377 (to an engineer, whether he had been promised "considerable money" if the
proceedings "went through," allowed).
1905, Union Pacific R. Co. v. Field, 137 Fed. 14, 16, 69 C. C. A. 536 (that a witness for the
defendant corporation "came to the trial upon passes . . . was not a proper subject of com-
ment"; unsound).
1905, State v. Rosenthal, 123 Wis. 442, 102 N. W. 49 (payment of expenses, etc., may be
inquired into).
§ 963. Habitual Falsities ; Sundry Corrupt Conduct.
[Note 1; add:]
1905, Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918 (that the witness employed a person to
negotiate with a judge for a corrupt decision in a prior stage of the cause, allowed).
[Note 2; add:]
1912, Frauenthal v. State, — Ark. — , 146 S. W. 491 (rape under age, the prosecutrix being
12-13 years of age ; the defendant offered to show that the prosecutrix had asserted similar
acts done to her by other men, and that these other charges were false — though this part
of the offer is not clear ; excluded on the ground that nothing short of mental derangement
could be shown ; we respectfully protest against such a dangerous ruling, and recommend
a perusal of Gross' "Criminal Psychology" and Healy's "Juvenile Delinquent"; it ought
to be well understood by criminal judges that some women and girls have at times precisely
this trait, and that it is always proper to protect a possibly innocent man by an inquiry
into the prosecutrix' trait).
1910, Heath v. State, 173 Ind. 296, 90 N. E. 310 (rape under age ; that the complainant
witness and her father had filed affidavits charging other young men with similar acts,
excluded).
1912, People v. Wilson, 170 Mich. 669, 137 N. W. 92 (like People v. Evans, supra).
1909, State v. Pemberton, 39 Mont. 530, 104 Pac. 566 (the prosecuting witness was not
allowed to be asked as to a similar robbery-story, falsely told by him on one occasion
fourteen years before, nor was the story allowed to be proved by another witness; no
authority cited).
It is time that the Courts took warning here, and became more liberal. They know,
and we all know, that the covu^-room has its quota of false claimants and pretended victims
of wrongs ; some are children, some eccentrics, some hysterics, some insane, some conscious
blackmailers. It is hard enough, at last, to detect and expose them. To hamper this
exposure with the shibboleth "res inter alios acta" is unpractical. And the injustice of the
situation is often intensified by this maddening prohibition of the very evidence ,to which
a common-sense tribunal would most quickly resort.
Any judge who has not heard of some of the instances in which such a complete investi-
gation soon clears up the whole atmosphere should read Dr. Bernhard Glueck's article on
"The Forensic Phase of Litigious Paranoia," in the Journal of the American Institute of
Criminal Law and Criminology, V, 371 (September, 1914) ; also Professor Hans Gross'
" Criminal Investigation" (1907, transl. Adam), p. 171.
The double barrier erected by our strict precedents in this field may be instanced by the
case nowadays common in our courts, a charge against an oldish man of indecencies with
a young girl or child in his shop or house. Usually the facts are either that the man is a
sexual pervert, or that the female is a sexual hysteric or a precocious little reprobate. If the
former case, the prosecution tries to show that the man has a habit of treating little girls
in that way. No ; that cannot be done ; the character-rule forbids. If the latter case, the
202
IMPEACHMENT; BIAS, ETC., FROM CONDUCT §968
[Note 2 — continued]
defence tries to show that the girl has been falsely charging other men with similar offences.
No, that cannot be done ; the witness-rule forbids. And so, whichever the truth may be,
the Court ties up the case in these intellectual ropes, and lets the parties struggle away with
the fragments of evidence that are permitted to be used. And yet we assume that this
process is a skilled and worthy effort to establish the truth 1
§ 966. Interest in Civil Cases ; General Principle.
[Nate 1, col. 1; add:]
1906, Hanchett v. Haas, 219 111. 546, 76 N. E. 845.
1904, Conner v. Missouri P. R. Co., 181 Mo. 397, 81 S. W. 145.
[Note 1, at the end; add:]
1908, Helbig v. Citizens' Ins. Co., 234 111. 251, 84 N. E. 897.
1904, Strebin v. Lavengood, 163 Ind. 478, 71 N. E. 494 (form of instruction, considered).
1905, Denver C. T. Co. v. Norton, 141 Fed. 599, 608, C. C. A. (party-opponent; an instruc-
tion may be demanded);
§ 967. Accomplices and Co-Indictees.
[Note 2; add:]
1910, ToUifson v. People, 49 Colo. 219, 112 Pac. 794 (burglary; the witness was under a
charge of assault, held not improperly excluded in discretion).
1906, Hayes v. State, 126 Ga. 95, 54 S. E. 809.
1905, Terr. v. Boyd, 16 Haw. 660 (indictment for the same offence, admitted).
1904, State v. Rosa, 71 N. J. L. 316, 58 Atl. 1010 (that the witness was arrested on the same
charge, admitted on cross-examination).
1909, De Graff v. State, 2 Okl. Cr. 519, 103 Pac. 538 (liquor-offence).
1912, O'Neal v. State, — Tex. Cr. — , 146 S. W. 938.
[Note 3, par. 1 ; add:] ^
1905, Stevens v. People, 215 III. 593, 74 N. E. 786 (" Do you expect to be no further prose-
cuted in this matter?" allowed, whether or not his expectation was justified by any bind-
ing promise).
[Note 4 ; add, under Accord :]
1904, Wilkerson v. State, 140 Ala. 165, 37 So. 265 (indictment for the same illegal sale of
liquor; admitted).
1910, McCray v. State, 134 Ga. 416, 68 S. E. 62 (murder of W. ; indictment against defendant
and McK., a witness for defendant, for an assault on B., as a part of the same affair, admitted
to show bias of McK.).
1910, Gray v. State, 4 Okl. Cr. 292, 111 Pac. 825.
§ 968. Accused in a Criminal Case.
[Note 1 ; add :]
1904, People v. Wells, 145 Cal. 138, 78 Pac. 470. 1907, People v. Ryan, 152 Cal. 364, 92
Pac. 853.
1904, Waller v. People, 209 111. 284, 70 N. E. 681.
1904, Schultz V. People, 210 111. 196, 71 N. E. 405 (form of instruction determined ; prior
rulings collected). 1911, People v. Arnold, 248 111. 169, 93 N. E. 786.
1907, Burk V. State, 79 Nebr. 241, 112 N. W. 573.
203
§968 IMPEACHMENT; BIAS, ETC., FROM CONDUCT
[Note 1 — continued]
1907, gtate v. Bartlett, 50 Or. 440, 93 Pac. 243.
1895, Reagan v. U. S., 157 U. S. 301, 305, 15 Sup. 610.
1904, Alexis V. U. S., 129 Fed. 60, 63 C. C. A. 502.
1905, Schutz I). State, 125 Wis. 452, 104 N. W. 90.
§ 969. Bonds, Rewards, Insurance, etc., as afEecting Interest.
[Note 1; add:]
1903, Terr. v. Sing Kee, 14 Haw. 586, 590 (informer).
[NoU2; add:]
1905, Borck v. State, — Ala. — , 39 So. 580 (buyer of liquor illegally sold).
1890, Hronek v. People, 134 111. 139, 24 N. E. 681 (private detective's evidence is not neces-
sarily open to be discredited).
1913, People v. Gardt, 258 111. 468, 101 N. E. 687 (Hronek v. People followed).
1905, State v. Bean, 77 Vt. 384, 60 Atl. 807.
1907, Taft V. Taft, 80 Vt. 256, 67 Atl. 703 (private detectives in divorce).
[Note 3; add:]
1903, Southern R. Co. v. Bunnell, 138 Ala. 247, 36 So. 380 (railroad passenger's ejection;
whether the ticket agent testifying for the defendant, was under indemnity-agreement for
the case, allowed).
1908, Bates v. State, 4 Ga. App. 486, 61 S. E. 888.
[Note 4; add:]
1908, Lenahan v. Pittston C. M. Co., 221 Pa. 626, 70 Atl. 884 (rule affirmed; but here a
witness for the defendant was allowed to be asked if he, besides being an attorney for de-
fendant, was attorney for a company insuring the defendant).
[Note 5 ; add :]
1902, Fuller Co. v. Darragh, 101 111. App. 664 (that an insurance company is defending a
case, held improper to be asserted to the jury).
1906, Hammer v. Janowitz, 131 la. 20, 108 N. W. 109 (defendant's insurance against em-
ployer's liability, not admitted).
1908, Gracz v. Anderson, 104 Minn. 476, 116 N. W. 1116 (cross-examination of defendant
as to insurance, to affect his credibility, held properly excluded in the trial Court's discretion) .
1911, Simpson v. Foundation Co., 201 N.' Y. 479, 95 N. E. 10.
1904, Iverson v. McDonnell, 36 Wash. 73, 78 Pac. 202 (that defendant was insured, excluded).
1904, Edwards v. Burke, 36 id. 107, 78 Pac. 610 (principle affirmed).
1905, Lowsit V. Seattle L. Co., 38 id. 290, 80 Pac. 431 (Iverson v. McDonald followed).
1905, Stratton v. Nichols L. Co., 39 id. 323, 81 Pac. 831 (similar).
1905, Dossett v. St. Paul & T. L. Co., 40 id. 276, 82 Pac. 273 (similar).
[Note 6; add:]
1911, Pierce v. United Gas & E. Co., 161 Cal. 176, 118 Pac. 700 (jurors should ordinarily
not be asked questions emphasizing the fact of defendant's insurance).
1905, Teston v. State, 50 Fla. 137, 138, 39 So. 787 (embezzlement from a labor union ; wit-
nesses being members of the union were allowed to be questioned as to the bonding com-
pany's non-liability for indemnity unless upon conviction).
1906, Howard v. Beldenville L. Co., 129 Wis. 98, 108 N. W., 48 (proper mode of procedure
in questioning jurors as to an interest in a casualty company, considered).
Yet a witness not a party may be affected by his interest in an Insurance company :
204
IMPEACHMENT; CHARACTER FROM CONDUCT §986
[Note 6 — continited]
1906, Capital C. Co. v. Holtzman, 27 D. C. App. 125, 138.
1902, Hedlun v. Holy Terror M. Co., 16 S. D. 261, 92 N. W. 31 (cited ante, § 949, n. 4).
Compare the cases cited ante, §§ 282, 393, 949.
[Note 7; add:]
1905, State v. Jackson, 128 la. 543, 105 N. W. 51 (prosecuting witness in false pretences ;
repudiating the prior intimation in State v. Rivers, 58 id. 102, that the motives of interest
or bias thus created could be considered as evidence, not merely as to the credibility of the
witness, but also as to the guilt of the accused).
§ 980. Record of Judgment of Conviction.
[Note 5; add:]
Of course the rule about asking the witness before proving a self-contradiction (post,
§ 1025) has no application here.
[Text, p. 1108; add a new par. :]
(7) Whether to the record of conviction must be added some evidence of
identity of the person convicted and the witness, involves the' presumption of
identity of person from identity of name {post, § 2529).
§ 983. Cross- Examination; Relevant Questions excluded, etc.
[Text, p. 1112, 1. 1 of the quotation; i?isert:]
in R. V. Kennedy (Kilkenny; Mongan's Celebrated Trials in Ireland, pp. 28).
[Note 3,; add:]
and the citations po«i, § 1810.
§ 986. History and State of the Law in England and Canada.
[Note 2; add:]
1908, Farrington's Case, 1 Cr. App. 113 (that the defendant was an associate of blackmailers,
held improper).
1913, R. V. Cargill, 2 K. B. 271 (extrinsic evidence of unchaste acts by the girl, on a charge
of rape under age, excluded).
[Note 11; add:]
England: An article on the Scope of Cross-Examination is found in 71 J. P. 385, 397, 409
(1907).
Canada: B. C: St. 1903-4, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, §4
(repealsSt. 1902,c.22, §6).
1909, Brownell v. Brownell, 42 Can. Sup. 368 (divorce ; plaintiff's counsel was examining
the defendant as to a bigamous marriage which the defendant admitted ; on being asked the
name of the woman, the defendant refused to say, and the trial Court declined to compel
the answer ; by a majority the ruling was sustained ; the opinions are excellent illustrations
of the opposite points of view).
Newf. : St. 1904, c. 3, Rules of Court 32, par. 23 (like Eng. Ord. 36).
Ont.: 1906, R. v. Finnessey, 11 Ont. L. R. 338 (rape on a woman who had been alone in
company with B. ; questions to the woman and to B. as to having intercourse at the time
of being in company were disallowed on the trial ; held, on appeal, that the former question
205
§986 IMPEACHMENT; CHARACTER FROM CONDUCT
[Note 11 — continued]
was proper to be put, but the witness was "not generally compellable to answer," though
"to some extent" the trial Court's discretion controls, citing R. v. Laliberte,«Mpra; and that
the latter question was additionally proper as evidencing bias, on the principle of § 949,
ante, and an answer ought to have been compelled).
Yukon : Consol. Ord. 1902, c. 17, Ord. XXH, R. 259 (Hke Eng. Ord. 36, supra).
[Note 16 ; add, under Canada :]
1906, R. V. Finnessey, 11 Ont. L. R. 338 (cited supra, n. 11).
[Note 18; add:]
Alta. : St. 1910, Evidence Act, c. 3, § 22 (like Eng. St. 1854, c. 125, § 25, substituting "any
crime").
Ont. : St. 1909, c. 43, § 19 (like R. S. 1897, c. 73, § 19).
Sask. : St. 1907, c. 12, Evidence Act, § 30 (like Eng. St. 1854, c. 125, § 25, substituting
" any offence ").
Yukon: St. 1904, c. 5, § 43 (like Eng. St. 1854, c. 125, § 25, substituting "any crime").
[NoteW; add:]
For the cases interpreting this statute, see post, § 2276, n. 5, and ante, § 194.
§ 987. State of the Law in the Various Jurisdictions of the United States.
[Note 1; add:]
Alabama : Par. (2) : 1904, Ross v. State, 139 Ala. 144, 36 So. 718 (concealed weapon ; cross-
examination to other misconduct, allowed). 1909, Smith v. State, 161 Ala. 94, 49 So. 1029
(cross-examination to illegal sale of liquor, excluded). 1909, Lowman v. State, 161 Ala.
47, 50 So. 43 (cross-examination as to being "charged with running after other men's
wives," not allowed).
Par. (4) : Line 6, for "ib." ; read "129 id." and add the following : 1904, Ross v. State, 139 Ala.
144,36 So. 718 (indictment for assault to murder, excluded). 1904, Gordons). State, 140 Ala.
29, 36 So. 1009 (conviction for throwing stones into a railroad train, excluded, under Code
1896, § 1795 ; the statute was not intended to include crimes not disquahfying at common
law). 1904, Wilkerson v. State, 140 Ala. 165, 37 So. 265 (indictment for pubUc drunkenness,
excluded). 1906, Williams v. State, 144 Ala. 14, 40 So. 405 (only infamous crimes are ad-
missible; hence, "Were you ever convicted of a crime?" is too general). 1906, Fuller v.
State, 147 Ala. 35, 41 So. 774 (conviction for a statutory felony is admissible to impeach ;
distinguishing prior rulings as to misdemeanors, and admitting that they contain "expres-
sions calculated to mislead"). 1907, Mitchell v. State, 148 Ala. 618, 42 So. 1014 (conviction
for gaming, not admitted).
Alaska: Par. (4) : 1906, Ball v. U. S., 147 Fed. 32, 38, C. C. A. (under C. C. P. 1900, § 669,
the conviction may be of a misdemeanor, and may be of a court in another jurisdiction).
Arkansas: Par. (1): St. 1905, c. 52 (re-enacts Stats. 1894, § 2959). 1904, Plunkett v.
State, 72 Ark. 409, 82 S. W. 845 (rape under age ; acts of intercourse of prosecutrix with
other men, excluded). 1910, Adams v. State, 93 Ark. 260, 124 S. W. 766 (seduction;
woman's intercourse with another man, admitted, but only on the principle of § 1007, post).
1910, Belford D. State,96 Ark. 274, 131S. W. 953 (bastardy; woman's intercourse with others,
admitted, but only on the principle of § 133, ante). 1911, McAUster v. State, 99 Ark. 604,
139 S. W. 684.
Par. (2) : 1905, Little Rock V. & I. Co.s. Robinson, 75 Ark. 548, 87 S. W. 1029 (questions
as to immoral conduct, held not improperly excluded in the trial Court's discretion). 1906,
Benton v. State, 78 Ark. 284, 94 S. W. 688 (certain questions as to past domestic life ; some
held proper, others not). 1911, McAlister ». State, 99 Ark. 604, 139 S. W. 684 (murder;
cross-examination to the witness' former act of assassination, allowed).
206
IMPEACHMENT; CHARACTER FROM CONDUCT §987
[Note 1 — continued]
Par. (4) : 1905, Smith ii. State, 74 Ark. 397, 85 S. W. 1123 (conviction of petit larceny, ad-
mitted, against a defendant-witness).
California: Par. (2) : 1907, People v. Feng Chung, 5 Cal. App. 587, 91 Pac. 105. 1910, •
Gird's Estate, 157 Cal. 534, 108 Pac. 99 (cross-examination to a woman claimant's unchastity,
not allowed).
Par. (4) : 1904, People v. White, 142 Cal. 292, 75 Pac. 828 (the conviction must be for a
felony not a misdemeanor). 1905, People v. Kelly, 146 Cal. 119, 79 Pac. 846 (conviction of
five different felonies shown). 1906, People v. Gray, 148 Cal. 507, 83 Pac. 707 (arrest for
drunkenness, excluded). 1906, People v. Soeder, 150 Cal. 12, 87 Pac. 1016 (felony; here
against a defendant).
Colorado: Par. (2) : 1910, TolUfson v. State, 49 Colo. 219, 112 Pac. 794 (cross-examination
to arrest or information, generally improper, but in trial Court's discretion).
Connecticut : Par. (2) : 1905, Shailer v. Bullock, 78 Conn. 65, 61 Atl. 65 (bastardy ; questions-
to the defendant, a clergyman, as to prior charges of immorality, dismissal from employment,
etc., in other communities, held to be allowable in the trial Court's discretion; yet "most
of the foregoing questions . . . should have been properly excluded, because, if proved or
admitted, they had no legitimate tendency to affect his character for truthfulness"). 1909,
State V. Rivers, 82 Conn. 454, 74 Atl. 757 (particular acts of immorality and unchastity,
either before or after the date of the alleged assault, admissible on cross-examination of the
complainant, on a charge of rape under age).
Delaware: Par. (4) : 1905, State v. Powell, 5 Pen. Del. 24, 61 Atl. 966 (conviction for carry-
ing a concealed weapon, excluded).
Florida: Par. (2) : 1906, Baker v. State, 51 Fla. 1, 40 So. 673 (murder; a witness for the
State, not allowed to be cross-examined as to being the mother of bastards ; conviction of
crime and character for veracity are alone available). 1908, Clinton v. Goodrich, 56 Fla. 57,
47 So. 389 (cross-examination to illegal fishing, held improper).
Georgia: Par. (1) : 1904, Black v. State, 119 Ga. 746, 47 S. E. 370 (rape; extrinsic testi-
mony to the woman-witness' acts of lewdness with third persons, excluded).
Par. (2) : 1906, AUred v. State, 126 Ga. 537, 55 S. E. 178 (to a defendant, on cross-examination,
whether he "had ever bought any spurious money," not allowed, under Code 1895 § 1027).
Idaho: Par. (1) : 1904, State v. Harness, 10 Ida. 18, 76 Pac. 788 (statute not applicable to
misconduct affecting the witness' animus against the defendant).
Illinois: Par. (2) : 1904, Chicago City R. Co. v. Uhter, 212 111. 174, 72 N. E. 195 (personal
injuries; cross-examination as to domestic misconduct, excluded, as not concerning "the
truth or falsity of his testimony"). 1910, People v. Bissett, 246 111. 516, 92 N. E. 949
(murder ; defendant cross-examined as to having been a gambler and used aliases ; said
to be "prejudicial," but not passed upon). 1912, People v. Brown, 254 111. 260, 98 N. E.
535 (perjury ; cross-examination of a woman-witness to chastity, held properly excluded,
as abusive and unnecessary). 1913, People v. Newman, 261 111. 11, 103 N. E. 589 (former
arrest, excluded). 1914, People «. Warfield, 261 111. 293, 103 N. E. 979 (confidence game by
de luxe book-contracts; cross-examination of defendant to an alias, and of defendant's
witnesses, book-dealers, to dishonest trade methods, not allowed ; unsound ; no authority
cited). 1914, People v. Duncan, 261 111. 339, 103 N. E. 1043 (rape under age ; cross-examina-
tion of defendant's wife to lewd conduct, excluded; unsound).
Par. (4) : 1904, McKevitt v. People, 208 111. 460, 70 N. E. 693 (Rev. St. 1874, c. 38, § 279,
as amended in 1899 to exempt from the civil consequences of infamy a person sentenced to
the State Reformatory, does not affect the admissibility of a conviction under ib. § 426,
where the sentence on such conviction is to the Reformatory). 1908, Clifford v. Pioneer
Fireproofing Co., 232 111. 150, 83 N. E. 448 (conviction for an infamous crime, admissible ;
here, rape).
Indiana: Par. (1) : 1904, Dunn v. State, 162 Ind. 174, 70 N. E. 521 (murder; testimony
to an act of adultery with another person, eight years before, contradicting the defendant's
denial of it on his cross-examination, held improper).
207
§987 IMPEACHMENT; CHARACTER FROM CONDUCT
[Note 1 — contimied]
1905, Walker v. State, 165 Ind. 94, 74 N. E. 614 (excluded).
P. 1129, col. 2, 1. 6, add: "and bastardy (§399)."
Par. (2) : 1910, Heath v. State, 173 Ind. 296, 90 N. E. 310 (rape under age; complainant
witness' character, not evidenced by acts of intercourse with others).
Par. (4) : 1909, Dotterer v. State, 172 Ind. 357, 88 N. E. 689 (conviction for assault and
battery, admitted ; opinion not clear ; applying Rev; St. 1897, § 519, being Burns' Annot.
St. 1908, § 530).
Indian Territory: Par. (2) : 1906, McCoy v. U. S., 6 Ind. Terr. 416, 98 S. W. 144 (to the
defendant, "How many larceny cases have there been here against you?" allowed; Oxier
». U. S. followed, but the various rules are not carefully discriminated).
Iowa: Par. (4) : 1913, Thorman's Estate, — la. — , 144 N. W. 7 (cross-examination to dis-
barment, allowed).
Kansas: Par. (2) : 1907, State v. Pugh, 75 Kan. 792, 90 Pac. 242 (trial Court's discretion).
1913, State v. Sexton, 91 Kan. 171, 136 Pac. 901 (illegal sale of liquor; cross-examination
of the State's witness to sales by -him, with a view to contradicting him if he denied, held
improper ; unsound ; cross-examination is not objectionable because of the "outside issues
brought in"; it brings in no issues; but if on cross-examination he had denied, then of
course other witnesses cannot be called to contradict him ; if, on the other hand, he had on
cross-examination admitted the sales, the fact is thus quickly in the case, and the only
question can be whether a man who himself sells liquor illegally is any the less credible
thereby when he testifies against another alleged liquor-seller ; the records of experience
for centuries are that such persons are somewhat open to suspicion ; is there not a fable
of jEsop on the point?).
Par. (4) : 1904, State v. Coover, 69 Kan. 382, 76 Pac. 845 (questions to defendant as to
prior arrest and sentence to the reform school, allowed).
Kentvcky: Par. (1) : 1908, Leach v. Com., 129 Ky. 497, 112 S. W. 595 (murder; immoral
intimacy between deceased and chief witness for the State, admitted, as evidencing bias ;
distinguishing the inadmissible use to evidence moral character).
Pars. (2), (3), (4) : 1904, MuUins v. Com., — Ky. — , 79 S. W. 258 (prior arrest, excluded;
no authority cited).
1904, Seaborn v. Com., — Ky. — , 80 S. W. 223 (obscure).
1906, Henderson v. Com., 122 Ky. 296, 91 S. W. 1141 (conviction for forgery, admitted).
1906, Britton v. Com., 123 Ky. 411, 96 S. W. 556 (murder ; cross-examination of the accused
as to killing a man in Virginia and being indicted for it, excluded, on the ground that it is
"not competent to show any particular wrongful act that the witness has been guilty of,
or that he has been indicted for an offence," unless by showing a conviction therefor ■ this
ruling seems to follow precisely Welch v. Com., Ill Ky. 530, swpra, and to straighten out
at last the long ta,ngle in the foregoing rulings; notice that it virtually assimilates the rule
to that of the California Code type).
1907, Wells V. Com., — Ky. — , 99 S. W. 218 (conviction misdemeanor, excluded)
1907, Ball «. Com., — Ky. — , 99 S. W. 326 (similar).
St. 1908,_c. 67, p. 181, Mar. 19, § 1 (juvenile delinquents; "the disposition of any child
under this act" shall not be evidence against such child "in any civil, criminal, or other
cause . . . for any purpose whatsoever").
1908, Ochsner v. Com., 128 Ky. 761, 109 S. W. 326 (the particular nature of the offence may
be inquired about, when the conviction is proved by cross-examination).
Louisiana: Par. (2) : 1906, States. High, 116 La. 79, 40 So. 538 (murder; cross-examination
of a witness for the State as to a seduction, held properly excluded in discretion).
1906, State v. Barrett, 117 La. 1086, 42 So. 513 (questions to the defendant-witness, "how
often have you been prosecuted before the courts, and for what offences," held improper,
in asking for mere prosecutions not convictions ; prior cases explained ; Breaux, C J diss )'
Par. (4): 1906, State v. Griggsby, 117 La. 1046, 42 So. 497 (conviction in 'a city court^
admitted, here against a defendant-witness). 1913, State v. Manual, 133 La. 571 63 So'
208
IMPEACHMENT; CHARACTER FROM CONDUCT §987
[Note 1 — continued]
174 (murder; cross-pxamination 'of accused to a conviction for fence-cutting, allowed;
the rule is not restricted to felonies).
Maryland: Par. (1) : 1906, Richardson v. State, 103 Md. 112, 63 Atl. 317 (woman witness
in bigamy).
Par. (2) : 1913, Avery v. State, 121 Md. 229, 88 Atl. 148 (abortion; question to the ac-
cused's wife whether she had ever taken the girl to a house of ill-fame, excluded ; appar-
ently accepting the rule of total exclusion of questions to chastity-character).
Massachusetts: Par. (2) : 1906, Taylor !). Schoiield, 191 Mass. 1, 77 N. E. 652 (trial Court's
discretion controls).
Par. (4) : St. 1913, c. 81 (amending Rev. L. c. 175, § 21 ; substituting "felony" for "crime,"
and limiting the time for misdemeanor to 5 years prior, unless within that time there was
another conviction). 1913, Rittenberg v. Smith, 214 Mass. 343, 101 N. E. 989 (a presiden-
tial certificate of commutation, releasing after part service of sentence a person convicted
of fraudulent concealment of assets from a trustee in bankruptcy, does not prevent the con-
viction from being used to discredit). St. 1914, c. 406 (substituting, for Rev. L, c. 175,
§ 21, as amended by St. 1913, c. 81, the following: " The conviction of a witness of a
crime may be shown to affect his credibility," but not after 5 years if a misdemeanor, nor
after 15 years if a felony, " unless there has been a subsequent conviction [sic, for what ?]
of the witness within the above mentioned periods " ; this nicely balanced difference, of
5 years for misdemeanor and 15 years for felony, in its inherent relation to grades of
credibility, must have been revealed to the legislators by some seer of superhuman in-
sight; certainly neither scientific nor legal annals record that truth).
Michigan: Par. (2) : 1904, People v. Dowell, 136 Mich. 306, 99 N. W. 23 (People v. Got-
shall, supra, followed). 1912, YanelU v. Littlejohn, 172 Mich. 91, 137 N. W. 723 (false
representations in selling land; cross-examination of defendant to other false methods,
allowed).
Par. (4) : 1906, Lansing v. Michigan C. R. Co., 143 Mich. 48, 106 N. W. 692 (disbarment of
an attorney for criminal conduct; Dickinson v. Dustin, supra, explained).
1906, People v. DeCamp, 146 Mich. 533, 109 N. W. 1047 ("a crime"). 1913, Lunde v.
Detroit United R. Co., — Mich. — , 143 N. W. 45 (personal injuries ; cross-examination
of the woman to her past unchaste life, held allowable in the trial Court's discretion ;
reviewing prior cases).
Minnesota: Par. (2) : 1905, Malone v. Stephenson, 94 Minn. 222, 102 N. W. 372 (civil
arson ; questions as to domestic morals, etc., held improperly allowed in the trial Court's
discretion). 1905, State v. Bryant, 97 Minn. 8, 105 N. W. 974 (liquor sale ; cross-examina-
tion of the prosecuting witness as to a recent forgery, flight, and arrest, held properly ex-
cluded; foregoing cases not cited). 1906, State v. Peterson, 98 Minn. 210, 108 N. W. 6
(liquor-selling; trial Court's discretion confirmed). 1907, State v. Quirk, 101 Minn. 334,
112 N. W. 409 (murder; cross-examination of the defendant to his gambling career, held
not improper in discretion). 1909, State ». Fournier, 108 Minn. 402, 122, N. W. 329 (cross-
examination held improper on the facts).
Mississippi: Par. (2) : 1904, Ivy v. State, 84 Miss. 264, 36 So. 265 (murder; cross-exami-
nation of the defendant's mistress as to her children by other fathers, held improper).
1907, Starling ». State, 89 Miss. 328, 42 So. 798 (to a defendant, whether he had been charged
with any other offence, excluded).
Par. (4) : 1905, Cook (Dan) v. State, 85 Miss. 738, 38 So. Ill (the preposterous ruling is
made that convictions of crime to discredit cannot be used "unless the witness had at first
denied it" ; no authority is or could be cited for this ruling).
1905, Cook (Lon) v. State, 85 Miss. 738, 38 So. Ill (similar to the preceding).
Missouri: Par. (1) : 1905, Wright v. Kansas City, 187 Mo. 678, 86 S. W. 452.
Par. (2) : 1907, State v. Long, 201 Mo. 664, 100 S. W. 587 (cross-examination to the fact
of a detestable crime, allowed in the trial Court's discretion). 1912, State v. Bobbitt„242
Mo. 273, 146 S. W. 799 (cross-examination to improper conduct, held not improperly ex-
209
§987 IMPEACHMENT; CHARACTER FROM CONDUCT
[Note 1 — continv^d]
eluded in the trial Court's discretion). 1913, Wendling v. Bowden, 252 Mo. 647, 161 S.
W. 774 (not clear).
Par. (4) : 1905, State v. Heusack, 189 Mo. 295, 88 S. W. 21 (statute applied to allow ques-
tions as to a misdemeanor). 1905, State v. Spivey, 191 Mo. 87, 90 S. W. 81 (but the
question should ask directly for the conviction, and not as to being in the penitentiary,
etc.).
1905, State v. Woodward, 191 Mo. 617, 90 S. W. 90 (compare the rule of § 1270, post).
1907, State v. Brooks, 202 Mo. 106, 100 S. W. 416 (conviction for manslaughter, admitted
against defendant as witness). 1907, State v. Arnold, 206 Mo. 589, 105 S. W. 641 (convic-
tion for misdemeanor, admissible).
Montana : Par. (2) : 1904, State v. Howard, 30 Mont. 518, 77 Pac. 50 (cross-examination
as to being under arrest, allowed on the facts).
1904, State v. Rogers, 31 Mont. 1, 77 Pac. 293 (questions as to a plan to commit another
crime, excluded). 1909, State v. Crowe, 39 Mont. 174, 102 Pac. 579 (cross-examination
to the witness' prior misdeeds, excluded). 1912, State v. Biggs, 45 Mont. 400, 123 Pac.
410 (cross-examination held properly limited).
Nebraska: Par. (1) : 1910, Wilson v. State, 87 Nebr. 638, 128 N. W. 38 (defendant's deser-
tion from the army). 1914, Koepke v. Delfs, — Nebr. — , 146 N. W. 962 (bastardy;
extrinsic testimony to plaintiff's intercourse with others, excluded).
Par. (2) : 1905, Razee v. State, 73 Nebr. 732, 103 N. W. 438 (criminal libel ; cross-exami-
nation of the accused as to domestic relations, etc., heH improper; no authority cited).
Nevada: Par. (4) : 1905, State v. Roberts, 28 Nev. 350, 82 Pac. 100 (conviction must be of
felony). 1905, State v. Lawrence, 28 Nev. 440, 82 Pac. 614 (cross-examination of a defend-
ant as to convictions of felonies, allowed).
New Hampshire: Par. (4): 1909, Genest v. Odell Mfg. Co., 75 N. H. 365, 74 Atl. 593
(conviction for drunkenness, excluded).
New Jersey: Par. (1) : 1903, State v. Hendrick, 70 N. J. L. 41, 56 Atl. 247.
Par. (2) : 1905, State v. Mount, 72 N. J. L. 365, 61 Atl. 259 (assault and battery ; cross-
examination of the defendant to prior convictions for assault, allowed).
Par. (3) : St. 1906, c. 206, § 6, c. 208, § 5 (privilege abolished for bribery and other offences).
Par. (4) : 1906, State v. Mount, 73 N. J. L. 582, 64 Atl. 124 (the accused, on a charge of
assault, having admitted a prior conviction for assault, further inquiries as to the aggravated
nature of the prior assault, and rebuttal testimony contradicting his version of it, held
improper). 1909, Hill ». Maxwell, 77 N. J. L. 766, 73 Atl. 501 (State v. Henson followed ;
here on a civil trial for battery the defendant was asked as to having pleaded nolo contendere
to an indictment for the battery).
New York: Par. (1) : 1904, People v. De Garmo, 179 N. Y. 130, 71 N. E. 736. 1910, Pot-
ter V. Browne, 197 N. Y. 288, 90 N. E. 812 (witness plaintiff not allowed to state his expressed
reasons for discharging C, on the pretext of explaining the bias of C. as a witness).
Par. (2) : 1904, People v. De Garmo, 179 N. Y. 130, 71 N. E. 736 (defendant allowed to
be cross-examined, on a charge of manslaughter by beating, to other acts of violence).
1906, People v. Cascone, 185 N. Y. 317, 78 N. E. 287 (People v. Crapo approved, and the
rule applied to an accused). 1909, People v. Morrison, 195 N. Y. 116, 86 N. E. 1120, 88
N. E. 21 ("the defendant in an action either civil or criminal cannot be asked on cross-
examination whether he has been indicted''' ; and this rule applies equally to a witness not
a party ; following People v. Cascone).
Par. (4) : St. 1909, c. 240, § 61, p. 408 (re-enacting P. C. § 714, now Consol. L., c. 88, § 2444).
North Carolina: Par. (3): Rev. 1905, § 4407 (in election contests, no witness shall be
excused from discovering his qualification to vote, "except as to his conviction for an offence
which would disqualify him").
North Dakota: Par. (2) : 1909, State v. Nyhus, 19 N. D. 326, 124 N. W. 71 (cited more
fully post, § 2276, n. 5). 1914, State v. Oien, — N. D. — , 145 N. W. 424 (cross-examination
to an arrest, not allowed).
210
IMPEACHMENT; CHARACTER FROM CONDUCT §987
[Note 1 — continued]
Oklahoma: Par. (1) : 1912, Hooper v. State, 7 Okl. Cr. 43, 121 Pac. 1087 (illegal sale of
liquor; information charging another sale, held inadmissible).
Par. (2) : 1904, Flohr ». Terr., 14 Okl. 477, 78 Pac. 565 (larceny; cross-examination of
witnesses to adultery, excluded). 1905, Hill v. Terr., 15 Okl. 212, 79 Pac. 757 (discretion
of the trial Court controls). 1908, Slater v. U. S., 1 Okl. Cr. 275, 98 Pac. 110 (whether he
had ever been arrested, and for what, not allowed; forceful opinion, by Furman, P. J.).
1908, Price v. State, 1 Okl. Cr. 358, 98 Pac. 447 (cross-examination as to marrying a woman
with whom he had committed adultery, not allowed). 1909, Cannon v. Terr., 1 Okl. Cr.
600, 99 Pac. 622 (cross-examination of defendant's wife as to prostitution, etc., allowed).
1909, Caples v. State, — Okl. — -, 104 Pac. 493 (defendant's prosecution for statutory
rape of his wife before marriage, admitted as relevant to disprove his alleged motive for
killing; but the Coirrt in referring to Price v. State and Slater v. U. S., supra, leave the
precise rule for witnesses unstated). 1912, McKinnon v. Lively, 31 Okl. 433, 122 Pac. 124
(cross-examination to lawsuits and indictments, held improper). 1912, Watson v. State,
7 Okl. Cr. 590, 124 Pac. 1101 (murder; cross-examination of the accused to former kill-
ings, held improper on the facts). 1914, Castleberry v. State, — Okl. Cr. — , 139 Pac. 132
(rape under age ; woman-witness for defendant, allowed to be cross-examined to immodest
conduct with him) ; 1914, Cobb v. Oklahoma Pub. Co., — Okl. — , 140 Pac. 1079 (cross-
examination of plaintiff, in a suit for libel charging the plaintiff with fraud ; inquiry into
other similar transactions, allowed in discretion).
Par. (4) : 1909, Keys v. U. S., 2 Okl. Cr. App. 647, 103 Pac. 874 (whether he had been in
jail, not allowed). 1912, State v. Elliott, — Okl. Cr.— ,124 Pac. 86 (conviction for "boot-
legging," admissible). 1913, Busby v. State, — Okl. Cr. — , 136 Pac. 598 (conviction 17
years before, admitted).
Pennsylvania: Par. (2) : 1904, Com. v. Williams, 209 Pa. 529, 58 Atl. 922 ("Weren't you
running a sporting-house?" to a woman, excluded; ignoring Elliott v. Bayles, supra, and
erroneously treating it on the principle of § 924, ante).
Par. (4) : 1909, Com. v. Racco, 225 Pa. 113, 73 Atl. 1067 (murder ; defendant allowed in
discretion to be asked whether he had been convicted of larceny, battery, etc.).
South Carolina: Par. (2) : 1904, Kennington v. Catoe, 68 S. C. 470, 47 S. E. 719 (questions
to an unmarried woman as to her children, etc., held properly excluded in the trial Court's
discretion). 1906, State v. Stukes, 73 S. C. 386, 53 S. E. 643 (murder; cross-examination
to the defendant's relations with a woman connected with the case, allowed). 1908, State
V. Mills, 79 S. C. 187, 60 S. E. 664 (murder ; cross-examination of a defendant to prior "diffi-
culties," allowable only so far as they affect credibiUty).
South Dakota : Par. (2) : 1904, State v. Smith, 18 S. D. 341, 100 N. W. 740 (rape under age ;
cross-examination of the prosecutrix to prostitution, etc., excluded). 1913, State v. Sy-
singer, 25 S. D. 110, 125 N. W. 879 (questions as to living under assumed name, allowed).
1911, Richardson v. Gage, 28 S. D. 390, 133 N. W. 692 (question as to an arrest for steaUng,
held improper).
Tennessee: Par. (2) : 1912, Hughes v. State, 126 Tenn. 40, 148 S. W. 543 (murder; cross-
examination of defendant to former murders, held proper).
Texas: Par. (2) : 1911, Campbell v. State, 62 Tex. Cr. 561, 138 S. W. 607 (rape; cross-
examination to libertinous conduct, held improper). 1911, Wright v. State, 63 Tex. Cr.
429, 140 S. W. 1105 (cross-examination to a former indictment allowable, but not to a
former arrest on complaint merely).
Par. (4) : 1903, Lee v. State, 45 Tex. Cr. 51, 73 S. W. 407 (indictments admissible; Hen-
derson, J., diss.). 1907, Fannin v. State, 51 Tex. Cr. 41, 100 S. W. 916 (rule of Lee v. State
recognized, that prior indictments could be used to impeach). 1907, Cecil v. State, — Tex.
Cr. — , 100 S. W. 390 (former indictment for felony against defendant as witness, admissible) .
1912, Moore v. State, — Tex. Cr. — , 144 S. W. 598 (discussing the question how far instruc-
tions should limit the use of such evidence). 1913, Vick v. State, — Tex. Cr. — , 159 S. W.
50 (conviction of felony 13 years before, held inadmissible on the facts ; the opinions differ
211
§987 IMPEACHMENT; CHARACTER FROM CONDUCT
[Note 1 — continued]
as to the precise rule of law; in the opinion of Prendergast, J., the prior cases are
collected).
United States: Par. (2) : 1906, Glover v. U. S., 147 Fed. 426, C. C. A. ("a mere accusation
or arrest," not allowed to be asked about).
1906, Miller v. Terr., 149 Fed. 331, 336, — C. C. A. — (whether stolen property had been
found in his possession, whether he had associated with persons reputed to be thieves, etc.,
not allowed). 1914, Nashville I. R. Co. b. Barnum, 2d C. C. A., 212 Fed. 634 (accepting
the rule of Third Gt. W. Turnpike Co. v. Loomis, N. Y.).
Par. (3) : U. S. St. 1901, c. 809, Mar. 2, 31 Stat. L. 950 (civilians before a court-martial;
privilege recognized).
Utah: Par. (2): 1909, State v. Williams, 36 Utah 273, 103 Pac. 250 (rape under age;
cross-examination of accused to similar conduct with other little girls, excluded).
1911, State V. Thome, 39 Utah 208, 117 Pac. 58 (a witness may not be asked as to "mere
specific acts or conduct of a wrongful, culpable, or even incriminating character not amount-
ing to the commission of a crime," this being the "prevailing rule" in the United States;
no authority cited ; this is the first time that the anomalous rule of the California Code has
been described as the "prevailing rule" ; it is the rule of a very small minority of States;
Conway v. Clinton, supra, not cited).
1913, State v. Reese, — Utah — , 135 Pac. 271 (bastardy ; questions to a witness as to hav-
ing himself embraced the prosecutrix' sister on the evening of the alleged act of intercourse,
during a ride taken by all four, excluded, purporting to follow the quotation ante from Third
Gt. Western Turnpike Co. v. Loomis, N. Y., and to prohibit all questions as to chastity;
the opinion fails to observe any distinction between the question and the privilege not to
answer, though quoting Comp. L. 1907, § 3431 ; the opinion's concession that "a few spo-
radic cases hold such questions proper" is a cheerful way of treating the general rule in
England and America ; and its citation of State v. Shockley, 29 Utah 25, 80 Pac. 865, as
supporting this ruling, gives too much weight to a lamentable decision which ought rather
to have been repudiated).
Vermont: Par. (2) : 1905, State v. Stimpson, 78 Vt. 124, 62 Atl. 14 (rape under age ; cross-
examination of prosecutrix as to prior prostitution, not admitted to affect credit).
Virginia: Par. (2) : 1906, Southern R. Co. i>. Blanford's Adm'x, 105 Va. 373, 54 S. E. 1
(whether a collision was caused by a wrong setting of a switch ; the switchman having tes-
tified that it was properly set, a cross-examination as to having made a similar mistake
shortly before, was allowed "to test his accuracy, veracity, or credibility," on the prin-
ciple of § 979, ante; but testimony from another witness would have been excluded).
Par. (4) : 1853, Anglea v. Com., 10 Gratt. 696 (under the Code, conviction of felony is admis-
sible, even after a pardon). 1910, Davidson v. Watts, 111 Va. 394, 69 S. E. 328 (conviction
for larceny may be shown, though the sentence has been served).
Washington: Par. (1) : 1913, State v. Shaw, 75 Wash. 581, 135 Pac. 20 (murder; the ac-
cused having admitted on cross-examination that he had been discharged from the army for
bad conduct, a miUtary certificate to the same effect was excluded, on the ground of the
inadmissibility of a certificate; ignoring the present and better ground).
Par. (2) : 1904, State v. Eder, 36 Wash. 482, 78 Pac. 1023 (cross-examination of the de-
fendant's wife to show that he had been confined in the penitentiary, held improper).
1905, State v. Mann, 39 Wash. 144, 81 Pac. 561 (question as to having been tarred and
feathered, held properly excluded). '
1906, State v. Belknap, 44 Wash. 605, 87 Pac. 934 (seduction ; cross-examination of witnesses
testifying to other intercourse with the prosecutrix was held to exceed the trial Court's dis-
cretion ; unsound on the facts). 1910, State v. Katon, 47 Wash. 1, 91 Pac. 250 (trial Court's
discretion controls). 1910, State v. Cottrell, 56 Wash. 543, 106 Pac. 179 (forgery; cross-
examination to other frauds, held improper on the facts).
Par. (4) : 1903, State v. Champoux, 33 Wash. '339, 74 Pac. 557 (conviction for murder,
appealed from and pending, admitted). St. 1909, c. 249, p. 900, § 38 (quoted ante, § 488).
212
IMPEACHMENT; CHARACTER FROM CONDUCT §988
[Note 1 — continued] ,
1912, State v. Overland, 68 Wash. 566, 123 Pac. 1011 (under Crim. Code 1909, § 38, Rem.
& Ball. Code, § 2290, any crime may be shown; even though a misdemeanor).
Wisconsin: Par. (2) : 1903, Meehan v. State, 119 Wis. 621, 97 N. W. 173 (assault, question
to the prosecuting witness, "whether he ran a sporting-house," excluded). 1905, State v.
Nergaard, 124 Wis. 414, 102 N. W. 899 (violation of game law ; questions to defendant as
to prior arrest for a similar offence, held not prejudicial error, as he admitted his conviction,
therefor; questions as to being under poUce surveillance, held allowable in discretion).
1908, Dungan «. State, 135 Wis. 151, 115 N. W. 350 (assault with intent to rape; questions;
as to the accused's occupation with prostitutes, held allowable in the trial Court's discre-
tion; good opinion by Dodge, J.). 1909, Farrell j). Phillips, 140 Wis. 611, 123 N. W. 117
(a single act of contempt of court many years before, held improperly admitted).
Par. (4) : 1906, Koch v. State, 126 Wis. 470, 106 N. W. 531 (arrest and conviction for being
drunk and disorderly ; question allowed ; the statute held to include misdemeanors, but
not violations of a city ordinance).
1909, Farrell v. Phillips, 140 Wis. 611, 123 N. W. 117 (contempt of court is not a conviction
of crime ; and the details of the offence cannot be read).
Wyoming : Par. (2) : 1909, Eads v. State, 17 Wyo. 490, 101 Pac. 946 (cross-examination
to an arrest for shooting in a house of prostitution, held not improperly excluded in the trial
Court's discretion).
§ 988. Rumors of Particular Misconduct, etc., distinguished.
[Note 1 ; add :]
1905, Harrison v. State, — Ala. — , 40 So. 57 (defendant's character). 1906, Williams v.
State, 144 Ala. 14, 40 So. 405 (witness' character). 1908, Way v. State, 155 Ala. 52, 46
So. 273 (like Moulton v. State). 1909, Andrews v. State, 159 Ala. 14, 48 So. 858 (murder;
"how many fights do you recall that he has had?" allowed). 1909, Lowman ». State, 161
Ala. 47, 50 So. 43 (cross-examination to charges of illegal liquor-selling, allowed). 1912,
Ragland v. State, — Ala. — , 59 So. 637 (the rumors cross-examined about must have been
heard before the time of the alleged offence). 1913, Watts v. State, 8 Ala. App. 264, 63 So. 15
(wife-murder ; re-direct examination of a witness to rumors of the accused having killed a
prior wife, not adniitted here ; the witness having been first called for the State and having
then on cross-examination testified only to a qualified good character of the accused).
]904,.Long V. State, 72 Ark. 427, 81 S. W. 387, semble.
1894, People v. Gordon, 103 Cal. 573, 37 Pac. 535 (rule stated).
1904, People v. Perry, 144 Cal. 748, 78 Pac. 284 (rule applied).
1906, People v. Weber, 149 Cal. 325, 86 Pac. 671 (cross-examination as to being told of
misconduct, allowed). 1912, People®. Burke, 18 Cal. App. 72, 122 Pac. 435. 1914, State .
v. Jones, 48 Mont. 505, 139 Pac. 441 (enforcing the distinction stated above in the text).
1909, Hunter v. State, 133 Ga. 78, 65 S. E. 154 (allowed). 1911, Dotson v. State, 136 Ga.
243, 71 S. E. 164 (murder; cross-examination of witness to defendant's good character,
as to having seen defendant in a fight, allowed). 1914, Frank v. State, 141 Ga. 243, 80
S. E.' 1016.
1914, McCreary v. Com., 158 Ky. 612, 165 S. W. 981 (rule applied).
1905, State v. Richards, 126 la. 497, 102 N. W. 439 (where actual character has been testi-
fied to, the cross-examination may ask as to actual misconduct). 1911, State v. Kimes,
152 la. 240, 132 N. W. 180 (like State v. Arnold; but why should the opinion cite an
Alabama case and ignore the other Iowa precedents?).
1906, State v. LeBlanc, 116 La. 822, 41 So. 105. 1911, State v. Green, 127 La. 830, 54 So.
45 (liquor-'selUng).
1913, People v. Huff, 173 Mich. 620, 139 N. W. 1033 (cross-examination of a good character
witness to the defendant's conduct after the date of the act charged, excluded).
213
§988 IMPEACHMENT; CHARACTER FROM CONDUCT
[Note 1 — continued]
1891, State v. Crow, 107 Mo. 345, 17 S. W. 745 (rule applied).
1904, State v. Brown, 181 Mo. 192, 79 S. W. 1111. 1908, State v. Harris, 209 Mo. 423, 108
S. W. 28 (allowable in the trial Court's discretion).
1908, People v. Laudiero, 192 N. Y. 304, 85 N. E. 132.
1905, Coxe V. Singleton, 139 N. C. 361, 51 S. E. 1019 (Barton v. Morphes, approved).
1912, State v. Wilson, 158 N. C. 599, 73 S. E. 812 (murder ; cross-examination to repute of
defendant as prostitute, allowed, but not repute of particular acts).
1907, State v. Dickerson, 77 Oh. 34, 82 N. E. 969 (cross-examination to rumored misconduct
of the accused, here held improper, because the witnesses cross-examined had not testified
to the accused's reputation, but to their personal opinion of his character, as allowed in this
State).
1908, State v. Doris, 51 Or. 136, 94 Pac. 44 (allowed, but a defendant-witness may explain
the rumors ; the further details to be in the trial Court's discretion).
1911, Com. V. Golandro, 231 Pa. 343, 80 Atl. 571 (excluded ; igijoring the present principle).
1903, HoUoway v. State, 45 Tex. Cr. 303, 77 S. W. 14 (here erroneously allowing proof of
the acts, not merely the rumors).
§991. Skilled Witness; Evidencing Incapacity, etc.
[Noted; add:]
1903, State v. Snyder, 67 Kan. 801, 74 Pac. 231 (illegal sale of beer ; testing of a witness for
the prosecution by his drinking from an offered bottle and then saying whether it was the
same as that sold to him, excluded, on the ground of collateral issues).
1906, People v. Pekarz, 185 N. Y. 470, 78 N. E. 294 (cross-examination of an alienist ; Hoag
V. Wright, supra, approved).
§ 995. Memory ; Testing the Capacity, etc.
[Note 2; add:]
In McDermott's Estate, 148 Cal. 43, 82 Pac. 842 (1905) is found the record of a witness
whose testimony exhibited Majocchi's striking trait.
[NoU3; add:]
1906, Southern R. Co. v. Blanford's Adm'x, 105 Va. 373, 54 S. E. 1 (negligence of a switch-
man cited ante, § 987, n. 1).
§ 1003. Test of Collateralness.
[Note 3; add:]
1911, Brock V. State, 101 Ark. 147, 141 S. W. 756.
1912, Thompson-Starrett Co. ii. Warren, 38 D. C. App. 310.
1913, Sanger v. Bacon, — Ind. — , 101 N. E. 1001 (falsification of a will).
1906, State v. Arthur, 135 la. 48, 109 N. W. 1083 (burglary; B. being one of the persons
breaking in, defendant's statement that he did not know B. was allowed to be contradicted).
1906, Finn v. New England T. & T. Co., 101 Me. 279, 64 Atl. 490 (a foreman's attempt to
suppress a newspaper account of the accident, held collateral).
1905, McKenzie v. Banks, 94 Minn. 496, 103 N. W. 497.
1904, Ferguson v. State, 72 Nebr. 350, 100 N. W. 800.
1913, Lfiunikitaa t. Wilkesbarre & W. V. T. Co., 241 Pa. 458, 88 Atl. 703 (but why should
the opinion quote six prior opinions and write five hundred lines, on a point settled for
two hundred years past?).
1911, Comstock's Adm'r v. Jacobs, 84 Vt. 277, 78 Atl. 1017.
214
IMPEACHMENT; CONTRADICTION § 1005
[Note 3 — continued]
1910, Wharton v. Tacoma F. D. Co., 58 Wash. 124, 107 Pac. 1057.
1912, State v. Stone, 66 Wash. 625, 120 Pac. 76.
The following corollary seems sensible :
1910, Peoples. Leonardo, 199 N. Y. 432, 92 N. E, 1060 (murder; identity of defendant's
mother's cameo ring; the prosecution allowed to contradict the defendant's assertions as
to the ring, made on cross-examination, because the defendant, by calling the mother to
corroborate the defendant, had "voluntarily assumed to make the collateral issue & material
one").
§ 1005. Facts Discrediting in Respect to Bias, etc.
[Note 1, col. 1; add:]
1909, People v. Connelly, 157 Mich. 260, 122 N. W. 80 (husband-murder; the wife's chas-
tity before marriage, not allowed to be contradicted ; Hooker, J., diss., on the facts ; neither
of the opinions cites any of the foregoing ruUngs in this jurisdiction).
1909, Schnase v. Goetz, 18 N. D. 594, 120 N. W. 553.
[Note 1 ; add :]
1909, Dotterer v. State, 172 Ind. 357, 88 N. E. 689 (accomplice denying his presence, im-
peached by a judgment of conviction for his part in the battery) .
1909, Com. V. Racco, 225 Pa. 113, 73 Atl. 1067.
[Note 3, par. 1; add:]
1905, Morris v. State, — Ala. — , 39 So. 608.
1906, State v. Craft, 117 La. 213, 41 So. 550 (similar to Thomas v. David, quoted supra).
1905, State v. Malmberg, 14 N. D. 523, 105 N. W. 614.
1911, Gibbons v. Terr., 5 Okl. Cr. 212, 115 Pac. 129.
[Text, p. 1164, par. (d), at the end; add:]
Arthur Train, in the "Sunday Magazine," Nov. 7, 1908.
"Most cases turn on an unconsidered point. A prosecutor once lost what seemed to
him the clearest sort of a case. When it was all over, and the defendant had passed out of
the courtroom rejoicing, he turned to the foreman and asked the reason for the verdict.
'Did you hear your chief witness say he was a carpenter ?' inquired the foreman.
'Why, certainly,' answered the district attorney.
'Did you hear me ask him what he paid for that ready-made pine door he claimed to be
■working on when he saw the assault ? '
The prosecutor recalled the incident and nodded.
'Well, he said ten dollars — and I knew he was a liar. A door like that don't cost but
four-fifty!'
It is, perhaps, too much to require a knowledge of carpentry on the part of a lawyer trying
an assault case. Yet the juror was undoubtedly right in his deduction."
[NoteQ; add:]
1908, Pittsburgh, C. C. & St. L. R. Co. d. O'Conner, 171 Ind. 686, 85 N. E. 969 (intoxication).
[Text, p. 1166, at the end; add:]
1903, Hon. A. C. Plowden, "Grain or Chaff; the Autobiography of a Police Magistrate,"
p. 154 : "In the Tichborne Case, by a curious coincidence, at a sudden turn in the fortunes
of the case, I was enabled to volunteer a piece of evidence which was considered sufficiently
important to require my being called as a witness for the Crown. A witness had been called
for the defence, Jean Luie ; he was afterwards convicted of perjury, but at the moment his
215
1005 IMPEACHMENT; CONTRADICTION
[Text, p. 1166 — £
evidence was damaging, and unless it could be controverted there was no chance of a con-
viction. It was one of the sensational episodes of the trial. Among other lies, he swore
that he came to London from New York, by a steamer called the Circassian, arriving on a
certain day in May. As it happened, I had landed at Liverpool that same day, [returning^
from my American tour,] and my steamer was the Circassian, — only it had sailed from
Quebec, not from New York. The coincidence was so striking that I immediately whispered
it to Mr. Hawkins, Q. C, who was conducting the case for the Crown, and behind whom I
was seated. He at once asked leave of the Court to interpose me as a witness, and I was-
examined where I stood, in my wig and gown."
[Note 7; add:]
1904, Smith v. Lehigh Valley R. Co., 177 N. Y. 379, 69 N. E. 729 (plaintiff not allowed to
contradict the defendant's engineer, who testified on cross-examination that the bell had
been automatically ringing for several miles, by showing that it did not ring at certaia
points within that distance; the opinion by Parker, C. J., confuses the issue; CuUen, J.,.
diss.).
A peculiar example of the operation of this principle is seen in the cases cited ante, § 228,
n. 6, § 231, n. 1, and § 263, especially the last, where a witness has testified to a rumor or
repute as causing a party's alleged 6e&/ or deranged mental state, and then the opponent
offers to disprove the fact thus alleged to have been rumored or reported ; its non-existence
makes less probable the alleged report of it, and thus discredits the witness ; from the point
of view of the present rule, there ought to be no obstacle.
[Noted, 1. 1; add:]
and the following case : 1906, State v. Goodson, 116 La. 388, 40 So. 771 (a Syrian witness;
having insisted that he could not speak English, and having testified through an interpreter,
the fact of his abihty to speak and understand it was allowed to be shown to discredit him ;,
sensible opinion by Porter, J., trial judge).
[Note 10; add:]
But the following exceptional case "proves the rule"; 1906, Gulf C. & S. F. R. Co. ■»>
Matthews, 100 Tex. 63, 93 S. W. 1068 (a witness to the whereabouts of the deceased testified
that he had told W. about the deceased M., soon after the death; W. was allowed to con-
tradict this, because on the facts if the witness had not mentioned to anybody, on hearing-
of M.'s death, what he knew about M., it indicated that his testimony was fabricated ; good
opinion by Williams, J.).
§ 1006. Collateral Questions on Cross- Examination.
[Text, p. 1168, par. 1 ; add:]
1904, James W. Osborne, Esq., former Assistant District Attorney of New York City, in
the "Sunday MagazinCj" Nov. 27 : "The rule in the case of bias is the familiar one of 'give
the witness rope.' In other words, give his bias full swing, and he will reveal it so unmis-
takably that the truth will come out. In an amusing instance of this kind in Brooklyn
the late Charles Patterson revealed the quickness of his perceptions and his salient posses-
sion of that ingenuity which every lawyer needs in order to be a good cross-examiner.
The case was one for damages, a peddler's cart having been run over by a train and the
peddler having been killed. The point at issue was that which has been laid down by
the Courts as 'look and listen.' The question was as to whether the peddler, in driving
across the track, looked and listened and exercised proper care. A highly respectable
farmer testified that he saw the wagon drive upon the track ; that he did not see the peddler,
who was thus presumably lying back in the cart, asleep or dozing, and that he distinetly-
216
IMPEACHMENT; CONTRADICTION § 1006
[Text, p. 1168 — continued]
and unmistakably heard the engine blow its whistle and ring its bell. He insisted upon this,
and although it did not appear to Mr. Patterson that the blowing whistle and ringiftg bell
were true, the evidence could not be shaken. He accordingly asked : 'You came to town
with the engineer and fireman of the train, didn't you?' 'Yes.' 'Good fellows, aren't
they?' 'Yes.' 'Good friends of yours?' 'Yes.' 'What did they do for you, while in
town? Did they take you around?' 'Yes.' 'Where did they take you?' 'To the Eden
Musee.' 'You saw all there was to see at the Eden Musfie?' 'Yes.' 'Are you sure?'
'Yes.' 'Saw the Chamber of Horrors?' 'Yes.' 'AH the curiosities?' 'Yes.' 'Saw
the Uttle toy locomotive going around on the track ? ' ' Yes.' ' Hear its little whistle blow
in the darkndss?' 'Yes.' 'Hear it ring its little bell?' 'Yes.' 'Plainly?' 'Yes.'
'Now, sir,' said Mr. Patterson, 'there is no little locomotive at the Eden MwSe; it never blew
its whistle, and it never rang its bell. You explain to the jury how you can swear to such
statements.' The bias of the witness who, Mr. Patterson said, could 'hear bells and whistles,
anywhere, at any time,' had led him entirely astray, and his testimony, which was strongly
biased, was completely discredited."
[Note 2, 1. 7; add:]
1909, R. V. Butterfield, 18 Ont. L. R. 347 (cross-examination of a witness for the prosecution,
on a charge of illegal liquor-selling, as to their knowledge of other sales on the same day,
for which also a charge was pending against the same defendant, held refusable in the trial
Court's discretion; following Spenceley v. Wilmot).
[Note 3 ; add, under Contra :]
1905, Cook (Dan) v. State, 85 Miss. 738, 38 So. 110 (conviction of crime).
§ 1007. Contradicting Answers on the Direct Examination, etc. <
[I^tote 1; add:]
1910, Adams v. State, 93 Ark. 260, l24 S. W. 766 (following McArthur v. State, 59 Ark. 431) .
[Note 3; add:]
1905, ^Louisville & N. R. Co. v. Quinn, 146 Ala. 330, 39 So. 756.
The ruling in Brown v. State, 142 Ala. 287, 38 So. 268 (1904), that the opponent cannot
show error in a statement of the testimony of an absent witness not formally introduced nor used
is of course sound.
§ 1008. Falsus in Uno, Falsus in Omnibus.
[Note 1; add:]
In Turner v. State, 95 Miss. 879, 50 So. 629 (1909), Smith, J., diss., approves the above views) .
Distinguish the general charge that a witness' testimony may be rejected if the jury believe
that he has not sworn truthfully in general :
1910, Waldrop v. State, 98 Miss. 567, 54 So. 66.
§ 1010. Falsus in Uno ; Second Form of Rule.
[Note 1, p. 1173; add:]
1903, People v. Stevens, 141 Cal. 488, 75 Pac. 62 ("distrust").
1906, Ex parte Vandiveer, 4 Cal. App. 650, 88 Pac. 993 (distrusted, not necessarily rejected).
1907, People v. Grill, 151 Cal. 592, 91 Pac. 515.
1909, State v. O'Rourke, — Nebr. — , 124 N. W. 138 (more inconclusive logic-chopping).
1911, Henry «. State, 6 Okl. Cr. 430, 119 Pac. 278.
1906, Com. V. leradi, 216 Pa. 87, 64 Atl. 889.
217
§ 1010 IMPEACHMENT; CONTRADICTION
[Note 2; add:]
1907, Addis v. Rushmore, — N. J. L. — , 65 Atl. 1036 (it is "not a mandatory rule of evi-
dence").
1909, Ducharme v. Holyoke St. R. Co., 203 Mass.'384, 89 N. E. 561 ("but it is also true that
a jury may apply it"). ■
[The above Notes 1 and 2 are erroneously numbered in the original, and should be numbered
2 and 3.]
§ 1011. Same: Third Form of Rule.
[Note 1; add:]
1912, Pelham & H. R. Co. v. Elliott, 11 Ga. App. 621, 75 S. E. 1062.
§ 1012. Same : Fourth Form of Rule.
[Notel; aM:]
1906, Chandler v. State, 124 Ga. 821, 53 S. E. 91, semble.
1907, State v. Penna, 35 Mont. 535, 90 Pac. 787. 1907, State v. Tracey, 35 Mont. 552,
90 Pac. 791.
1905, Titterington v. State, 75 Nebr. 153, 106 N. W. 421. 1906, Barber v. State, 75 Nebr.
543, 106 N. W. 423.
1909, Rea «. State, 3 Okl. Cr. 269, 106 Pac. 381.
1909, Steber v. Chicago & N. W. R. Co., 139 Wis. 10, 120 N. W. 502.
[Note 2; add:]
1905, Little v. State, 145 Ala. 662, 39 So. 674.
1905, State v. Wain, 14 Ida. 1, 80 Pac. 221.
1904, Chicago & Alton R. Co. v. Kelley, 210 111. 449, 71 N. E. 355 (but the corroborating
evidence need not be believed by the jury, in order to make the rule applicable ; this is a
good instance of the jargon of futile intricacies to which this rule gives rise). 1904, Weston
V. Teufel, 213 111. 291, 72 N. E. 908 (the corroboration must be by "credible," not merely
"competent" witnesses; a vain quibble). 1906, United Breweries Co. v. O'Donnell, 221
111. 334, 77 N. E. 547.
1906, State v. Fuller, 34 Mont. 12, 85 Pac. 369.
1904, Suckow V. State, 122 Wis. 156, 99 N. W. 440. 1909, Miller v. State, 139 Wis. 57, 119
N. W. 850 (this seems to be now the settled form in this State).
§ 1013. Same: There must be a Conscious Falsehood.
[Note 1; add:]
1906, Hamilton v. State, 147 Ala. 110, 41 So. 940.
1904, Lee v. State, 72 Ark. 436, 81 S. W. 385 ("wilfully").
1904, Glenn v. Augusta R. & E. Co., 121 Ga. 80, 48 S. E. 684.
1905, Maguu-e v. People, 219 111. 16, 76 N. E. 67 ("wilfully and corruptly").
1907, Pittsburg, C. C. & St. L. R. Co. v. Haislup, — Ind. — , 79 N. E. 1035 ("knowingly and
intentionally").
1905, Sardis & D. R. Co. v. McCoy, 85 Miss. 391, 37 So. 706 ("wilfully, knowingly, and
corruptly").
1909, Turner v. State, 95 Miss. 879, 50 So. 629.
Mont. : 1907, State v. Penna, 35 Mont. 535, 90 Pac. 787.
1903, Nielsen v. Cedar Co., 70 Nebr. 637, 97 N. W. 826 ("knowingly and wilfully").
1904, Nielson v. Cedar Co., — Nebr. — , 98 N. W. 1090.
1912, Douglas v. Terr., — N. M. — , 124 Pac. 339.
218
IMPEACHMENT; CONTRADICTION § 1018
[Note 1 — continued]
1905, State v. Johnson, 14 N. D. 288, 103 N. W. 565.
1909, Kaufman v. Boismier, 25 Okl. 252, 105 Pac. 326 (a false statement is presumed to be
wilful).
[Note 2; add:]
1905, Powell V. State, 122 Ga. 571, 50 S. E. 369 ("successfully impeached"). 1906, Georgia
R. & B. Co. ». Andrews, 125 Ga. 85, 54 S. E. 76 ("successfully impeached" suffices; this
is ruled under the authority of Code 1895, § 5295, quoted ante, § 1008, n. 1, which does not
justify it).
Of course it is improper to charge that self-contradictions may per se create a reasonable
doubt of guilt in a criminal case :
1904, Brown v. State, 142 Ala. 287, 38 So. 268.
[Note 3; add:]
1904, Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28 (but wilful and knowing "ex-
aggeration" equally involves the rule). 1906, Chicago & S. L. R. Co. v. Kline, 220 111. 334,
77 N. E. 229 (yet the rule does not apply to a witness who has "knowingly belittled any
material fact"). 1906, Chicago City R. Co. v. Ryan, 225 111. 287, 80 N. E. 116. 1907,
Godah- V. Ham Nat'l Bank, 225 111. 572, 80 N. E. 407.
1908, People v. Laudiero, 192 N. Y. 304, 85 N. E. 132.
1911, State V. Meyers, 59 Or. 537, 117 Pac. 818 ("false" implies "wilfully").
§ 1014. Same: Falsehood must be on a Material Point.
[Note 1 ; add :] ^
1904, Doyle v. Burns, 123 la. 488, 99 N. W. 195.
1905, Boykin v. State, 86 Miss. 481, 38 So. 725.
It is not necessary that the he should be "palpable" to the jury : 1906, Chicago C. R. Co.
V. Shaw, 220 111. 532, 77 N. E. 139 ; this is another example of the wretched and wasteful
sophistry to which the rule leads.
§ 1015. Same: Time of the Falsehood, etc.
[Note 1 ; add, in a new paragraph :]
Whether an instruction on this principle oifalsus in uno may be demanded, is considered
in Pumorlo v. Merrill, 125 Wis. 102, 103 N. W. 464 (1905).
§ 1018. Self-contradictions; not admitted as Substantive Testimony.
[Note 2; add:]
1908, Dibble's Case, 1 Cr. App. 155 (from a hostile witness cross-examined by the^calling
party).
1906, Perdue v. State, 126 Ga. 112, 54 S. E. 820.
1904, Fletcher v. Com., — Ky. — , 83 S. W. 588.
1905, Whitt V. Com., — Ky. — , 84 S. W. 340.
1904 McDonald v. N. Y. C. & H. R. R. Co., 186 Mass. 474, 72 N. E. 55.
1905, Donaldson v. N. Y. N. H. & H. R. Co., 188 Mass. 484, 74 N. E. 915.
1904, People v. Miner, 138 Mich. 290, 101 N. W. 636.
1905, Simms v. Forbes, 86 Miss. 412, 38 So. 546.
1908, Com. V. Deitrick, 221 Pa. 7, 70 Atl. 275, aemble.
1912, State v. Chynoweth, — Utah — , 126 Pac. 276.
It is this principle which so much affects Courts in reaching the rule forbidding impeach-
ment of one's own witness by self-contradiction {ante, § 904).
219
§1021 IMPEACHMENT; CONTRADICTION
§ 1021. Two Classes of Facts not Collateral; (1) Facts Relevant, etc.
[Note 1; add:]
Ark. St. 1905, c. 52 (cited ante, § 923, ignores this limitation). 1909, Sellers v. State, 93
Ark. 313, 124 S. W. 770 (example of incorrect ruling).
1905, Western Union O. Co. v. Newlove, 145 Cal. 772, 79 Pac. 542 (boundary).
1913, Mitsunaga v. People, 54 Colo. 102, 129 Pac. 241.
1906, Swygart v. Willard, 166 Ind. 25, 76 N. E. 755 (intoxication of testator).
1907, State v. Sweeny, 75 Kan. 265, 88 Pac. 1078 (rule of Attorney-General v. Hitchcock
applied).
1905, State v. Rogers, 115 La. 164, 38 So. 952. 1910, State v. Fletcher, 127 La.' 602, 53 So.
877.
1913, Capital Traction Co. v. Contner, 120 Md. 78, 87 All. 904 (motorman's admission that
he lost control of his car, held not collateral). "
1905, Robinson v. Old Colony St. R. Co., 189 Mass. 594, 76 N. E. 190 (motorman's conduct).
1906, American Woolen Co. v. Boston & M. R. Co., 190 Mass. 152, 76 N. E. 658 (records of a
railroad).
1904, People v. Row, 135 Mich, 505, 98 N. W. 13 (rape).
1905, Davis v. State, 85 Miss. 416, 37 So. 1018 (here an over-strict ruling). 1905, Bell v.
State, — Miss. — , 38 So. 795 ("Would the cross-examining party be allowed to prove it as
a part or in support of his case?"). 1905, Scott v. State, — Miss. — , 39 So. 1012. 1909,
Cooper V. State, 94 Miss. 480, 49 So. 178.
1904, Ferguson v. State, 72 Nebr. 350, 100 N. W. 800 (approving the last two Nebraska
cases, but not noticing their difference).
1905, Dillard i>. U. S., 141 Fed. 303, 310, — C. C. A. — (rule of Attorney-General v. Hitch-
cock applied).
§ 1022. Same : (2) Facts Discrediting the Witness, etc.
[Note 1; add:]
1877, FincheJ- v. State, 58 Ala. 215, 219 (bias; admitted).
1911, Roberts v. State, 25 Del. 2 Boyce, 385, 79 Atl. 396 (lies told by defendant about having
no money).
1914, People v. Pfanschmidt, 262 111. 411, 104 N. E. 804 (opinion; excluded).
1907, Cook V. State, 169 Ind. 430, 82 N. E. 1047 (murder ; bias against the deceased ; ad^
mitted).
1910, Miller v. State, 174 Ind. 255, 91 N. E. 930 (murder ; erroneous ruling).
1912, State v. Swartz, 87 Kan. 852, 126 Pac. 1091 (that a witness was asleep at the time
testified to, allowed).
1904, People v. Row, 135 Mich. 505, 98 N. W. 13 (attempt to persuade persons not to go
surety for defendant ; allowed).
1909, Boche v. State, 84 Nebr. 845, 122 N. W. 72 (the witness' statement that he had told
two persons that one J. made utterances implicating J. as the real murderer, allowed to be
contradicted; Root, J., diss.).
1905, Creeping Bear v. State, 113 Tenn. 322, 87 S. W. 653 (here the witness had asked peo-
ple not to sign a pardon for the defendant).
§ 1023. Cross- Examination to Self-Contradiction, etc.
[Note 1; add:]
1905, Starke v. State, 49 Fla. 41, 37 So, 850.
1911, Chase v. Hoosac T. 85 W. R. Co., 85 Vt. 60, 81 Atl. 236 (trial Court's discretion).
1904, Illinois Steel Co. v. Jeka, 123 Wis. 419, lOl N. W. 399.
Compare the examples cited ante, § 1006, n^ 2.
220
IMPEACHMENT; SELF-CONTRADICTION § 1031
§ 1028. Preliminary Warning; State of the Law in Various Jurisdictions.
[Note 1; add:]
England: St. 1854, c. 125, § 22 (like the last half of ib. § 23, infra, for adverse witnesses).
Alta.: St. 1910, 2d sess.. Evidence Act, c. 3, § 21 (like Eng. St. 1854, c. 125, § 23).
Ont. : St. 1909, c. 43, § 18 (like R. S. 1897, c. 73, § 18).
Sask. : St. 1907, c. 12, Evidence Act, § 27, § 28 (the former section provides for the ease of
impeaching one's own witness).
Yukon: St. 1904, c. 5, §41.
United States : 1909, Jaynes v. People, 44 Colo. 535, 99 Pac. 325.
1875, State v. North, 42 Conn. 79 (similar). 1875, Tomlinson v. Derby, 43 Conn. 211
(similar). 1909, Adams v. Herald Pub. Co., 82 Conn. 448, 74 Atl. 755 (the prior warning
is not indispensable, if the trial court "was of the opinion that the ends of fairness and jus-
tice would thereby be best served" ; following Hedge v. Clapp).
1905, Villineuve v. Manchester St. R. Co., 73 N. H. 250, 60 Atl. 748 (same as Titus v.
Ash).
1904, McKinstry v. ColUns, 76 Vt. 221, 56 Atl. 985 (former testimony excluded, for lack of
the inquiry to the witness).
1903, Brown v. Gillett, 33 Wash. 264, 74 Pac. 386 (rule adopted).
§ 1029. Preliminary Question must be Specific, etc.
[Note 1; add:]
1907, R. V. Clarke, 38 N. Br. 11 (the sufficiency of the question is in the trial Court's discre-
tion; one judge diss.).
1904, Bradley v. Gorham, 77 Conn. 211, 58 Atl. 698.
1907, Clinton v. State, 63 Fla. 98, 43 So. 312.
1904, Stancliff v. U. S., 6 Ind. T. 486, 82 S. W. 882 ("time, place, and other surroundings").
1908, Gibson v. Seney, 138 la. 383, 116 N. W. 325 (sufficient "if the witness understands that
to which reference is made").
1911, Higgins v. Com., 142 Ky. 647, 134 S. W. 1135.
1903, Barton v. ShuU, 70 Nebr. 324, 97 N. W. 292.
1904, State v. Gray, 43 Or. 446, 74 Pac. 927.
1905, State v. Strodemier, 40 Wash. 608, 82 Pac. 915 (here the Court went to the other
extreme, and rebuked a prosecuting attorney because in laying the foundation for impeach-
ment of the defendant by his former testimony he asked the stenographer for the testimony
" at the trial of the State of Washington v. Henry Strodemier ; " this is finical ; why might
not the judge have tenderly suppressed all reference to the indictment in the present case,
so as to prevent the unfortunate accused from being prejudiced by the grand jury's opinion
of him).
1904, Wysocki v. Wisconsin L. I. & C. Co., 121 Wis. 96, 98 N. W. 950.
§ 1031. Testimony of Absent or Deceased Witness; (1) Depositions.
[Note 1; ad4:]
1906, Chany v. Hotchkiss, 79 Conn. 104, 63 Atl. 947, semble (the trial Court has discretion ;
the question not indispensable where there is no danger of surprise).
1913, Ebert v. Metropolitan St. R. Co., 174 Mo. App. 45, 160 S. W. 34 (rule properly applied
to a prior written statement by deponent).
1903, Brown v. Gillett, 33 Wash. 264, 74 Pac. 386 (deposition ; self-contradiction not ad-
missible without asking). 1913, Scandinavian-American Bank v. Long, 75 Wash. 270, 134
Pac. 913 (a letter not allowed to be used to contradict a deposition for lack of the prior warn-
ing; but the date of the letter does not appear; careless opinion).
221
§ 1032 IMPEACHMENT; SELF-CONTRADICTION
§ 1032. Same: (2) Testimony at a Former Trial.
[Note 1; add:]
1910, Wilson V. Com., Ky., 130 S. W. 793 (question required; no authority cited).
1907, People v. Peck, 147 Mich. 84, 110 N. W. 496 (deceased witness' testimony at a former,
trial; rule enforced).
1906, Lerum v. Geving, 97 Minn. 269, 105 N. W. 967 (Mattox «. U. S., infra, followed).
1900, Ely Walker D. G. Co. v. Mansur, 87 Mo. App. 105 (question not indispensable, in
impeaching former testimony preserved in a bill of exceptions made admissible by Rev. St.
1899, § 3149, cited post, § 1668, n. 2 ; careful opinion by Goode, J.).
1905, Omaha St. R. Co. v. Boesen, 74 Nebr. 764, 105 N. W. 303 (testimony at a second trial
offered on the sixth trial ; the testimony at the first trial, excluded, for lack of asking at the
second trial).
§ 1033. Same: (3) Dying Declarations; (4) Attesting Witness, etc.
[Note 1 ; add, under Accord ;]
1904, Gregory v. State, 140 Ala. 16, 37 So. 259.
1911, Salas v. People, 51 Colo. 461, 118 Pac. 992 (Garrigues, J., diss.).
1906, State v. Fleetwood, 6 Pen. Del. 153, 65 Atl. 772.
1907, State s. Uzzo, 6 Pen. Del. 212, 65 Atl. 775.
1908, Pyle v. State, 4 Ga. App. 811, 62 S. E. 540 (following Battle «. State).
1904, State «. Charles, 111 La. 933, 36 So. 29.
1908, State v. Fuller, 52 Or. 42, 96 Pac. 456.
1906, Arnwine v. State, 50 Tex. Cr. 254, 96 S. W. 4. 1906, McCorquodale v. State, 54 Tex.
Cr. 344, 98 S. W. 879 (excluded on the facts).
1906, State v. Mayo, 42 Wash. 540, 85 Pac. 251.
[NoU 3, 1. 1 :]
For "2 Johns." read "2 Hill."
[Note 3 ; add, under Accord:]
1910, Mobley ti. Lyon, 134 Ga. 125, 67 S. E. 668 (careful opinion by Atkinson, J. ; Evans
P. J., and Holden, J., diss.).
[Note 4; add, under Accord:]
1909, Speer v. Speer, 146 la. 6, 123 N. W. 176 (deceased attesting witness' declarations nega-
tiving testator's capacity, excluded ; careful opinion by McClain, J., following Stobart v.
Dryden ; the fallacy of the opinion seems to He in its statement that "the will stands as to
the mental capacity of testator upon a presumption of law regardless of any testimony by
subscribing witnesses to that effect"; the better view, post, § 1511, n. 4, does not support
this).
[Text, last line ; at the end, add a new note 5 :]
^ Quoted, but held not applicable :
1912, Gordon v. Munn, 87 Kan. 624, 125 Pac. 1 (deceased husband's statements as to an
ante-nuptial contract).
§ 1034. Same: (5) Testimony admitted by Stipulation, etc.
[Note 1 ; add, under Accord:]
1878, State «. Miller, 67 Mo. 604, 608 (under statute).
1904, Nagel ». St. Louis T. Co., 104 Mo. App. 438, 79 S. W. 502.
222
IMPEACHMENT; SELF-CONTRADICTION § 1039
[Note 1 ; add, under Contra :]
1904, Gregory v. State, 140 Ala. 16, 37 So. 259.
1905, Funderburk v. State, 146 Ala. 661, 39 So. 672.
§ 1036. Recall for Putting the Question, etc.
[Note 1, par. 1, col. 1; add:]
1904, Vann v. State, 140 Ala. 122, 37 So. 158.
1906, Hammond v. State, 147 Ala. 79, 41 So. 761.
1906, Pitman v. State, 148 Ala. 612, 42 So. 993.
1908. Johnson v. State, 55 Fla. 46, 46 So. 155.
1905, United States Wringer Co. v. Cooney, 214 111. 520, 73 N. E. 803.
1907, Hirsch & S. I. & R. Co. v. Coleman, 227 lU. 149, 81 N. E. 21.
1912, State v. Owens, 130 La. 746, 58 So. 557.
1905, Savage v. Bowen, 103 Va. 540, 49 S. E. 668.
[Text, par. (2) ; at the end, add a new note 2 :]
^ But of course, the oral asking is not necessary where the contradictory statement is in a
writing shown to the wiiness as required by the rule in The Queen's Case {post, § 1259) : 1903,
Illinois C. R. Co. v. Wade, 206 111. 523, 69 N. E. 565.
§ 1037. Contradiction admissible, no matter what the Answer, etc.
[Text, p. 1024, 1. 2 :]
After " does," insert " not."
[Note 2, col. 1; add:]
1911, Waycaster v. State, 136 Ga. 95, 70 S. E. 883.
1910, Searway v. U. S., 8th C. C. A., 184 Fed. 716.
[Note 3 ; add, under Accord:]
1912, People v. Singh, 20 Cal. App. 146, 128 Pac. 420.
1904, Chicago City R. Co. v. Matthieson, 212 111. 292, 72 N. E. 443 (here the witness said
"he might have" made the statement).
[iVofe4; inl. 12, add:]
1903, lUinois C. R. Co. v. Wade, 206 111. 523, 69 N. E. 565, semble.
1905, Chicago & E. I. R. Co. v. Crose, 214 111. 602, 73 N. E. 865 (rule applied).
1907, Rice «. State, — Tex. Cr. — , 100 S. W. 949.
Moreover, the cross-examiner may continue the probing (if he cares to risk it) by further
asking, "Is that former statement true or false?"; compare Sir Charles Russell's cross-
examination of Pigott in the Parnell Case, quoted post, § 1260, and the cases cited ante
§ 959, n. 1.
§ 1038. Assertion to be Contradicted must be Independent, etc.
[Note 2, 1. 5; add:]
1905, Bell V. State, ^ Miss. — , 38 So. 795.
§ 1039. Preliminary Question not necessary, etc.
[Note 1; add:]
Of course the rule has also no application to proof of error by contradiction through other
witnesses (ante, § 1006, n. 3) ;
223
§ 1039 IMPEACHMENT; SELF-CONTRADICTION
[Note 1 — contimted]
nor to proof of bad character by a record of convietion for crime (ante, § 980) ;
nor, of course, does it apply to proof of any conduct of the witness :
1907, Bliss V. Beck, 80 Nebr. 290, 114 N. W. 162 (intoxication).
§ 1040. Tenor and Form of Inconsistent Statements, etc.
[Note 2; add:]
1905, Cox V. State, 124 Ga. 95, 52 S. E. 150 (assault).
1905, State v. Rogers, 115 La. 164, 38 So. 952 (letter excluded, on the facts).
1907, Blickley v. Luce, 148 Mich. 233, 111 N. W. 752 (action against a landlord for loss of
goods in a building which collapsed and then burned ; the plaintiff's suit against the insurer
claiming loss by fire, not admitted as inconsistent).
1913, Uggen v. Bazille, — Minn. — , 143 N. W. 112 (whether a warning was given, in the
witness' understanding ; the above text approved).
1913, Liles V. May, — Miss. — , 63 So. 217 (alleged scrivener of a will; later statements
indicating different belief as to the succession, admitted).
1906, Rossenbach v. Supreme Court, 184 N. Y. 92, 76 N. E. 1085 (insured's intoxication).
[Nate 3; add:]
1905, People v. Hoffmann, 142 Mich. 531, 105 N. W. 838 (defendant's own affidavit for a
continuance, admitted).
1905, Glasgow v. Metropolitan St. R. Co., 191 Mo. 347, 89 S. W. 915 (deposition not certified
nor filed, but signed).
[Note 3, 1. 4; insert:]
see the cases cited ante, § 278, n. 3 (false affidavits by the accused), and post, § 1075, n. 2
(depositions used).
[Note 5] For " § 816," read " § 821."
Note that by the doctrine of waiver of the privilege against self-crimination an accused
taking the stand could be impeached by former self-contradictions contained in testimony
otherwise privileged under U. S. Rev. St. 1878, § 860 and similar statutes (quoted post, '
§ 2281). But thus far the decisions have taken the opposite view : cases cited post, § 2282,
n. 8, and § 2276, n. 9.
[Note 9; add:]
Other cases are noted post, § 1041, n. 3.
§ 1041. Opinion, as Inconsistent.
[Note 2; add:]
1912, Denver C. T. Co. v. Lomovt, 53 Colo. 292, 126 Pac. 276 (trolley-ear track-homicide;
eye-witness testifying for defendant; former statement that "the motorman ought to be
lynched," admitted).
1904, Jordan v. State, 120 Ga. 864, 48 S. E. 352 (seduction ; a witness to lewd conduct of the
prosecutrix impeached by expressions of belief in her chastity). 1908, Bates v. State, 4 Ga.
App. 486, 61 S. E. 888 ("Sam is coming clear," admitted to impeach an eye-witness for the
prosecution).
1904, State v. Crea, 10 Ida. 88, 76 Pac. 1013 (murder ; a witness for the defendant having
testified to seeing a part of the difficulty, it was held improper to admit his statement that
he had "seen the killing of M., and that it was as cold-blooded as you ever saw" ; this is
indeed bigotry in favor of technicality). 1913, Sanger v. Bacon, — Ind. — ,101 N. E. 1001
(here a legatee's opinions as to the testator's mental condition, here excluded).
224
IMPEACHMENT; SELF-CONTRADICTION § 1042
[Note 2 — continued]
1905, State v. Matheson, 130 la. 440, 103 N. W. 137 (the defendant's father, having testified
that he, though present, did not see the defendant use his pistol, allowed to be impeached
by a statement that the boy "has shot the deputy sheriff").
1903, Shinkle v. McCuUough, 116 Ky. 960, 77 S. W. 196 (negligence of an automobile ; the
driver's statement that he considered himself responsible, admitted).
1905, Jacobs v. Boston El. R. Co., 188 Mass. 245, 74 N. E. 349 (a paper bearing the alleged
signature of the witness, excluded ; the reason for the ruling is unascertainable from the
opinion). 1906, Cotton v. Boston El. R. Co., 191 Mass. 103, 77 N. E. 698 (damage by
eminent domain ; the petitioner's offer to sell at a price exceeding the value as testified to by
him, admitted). 1907, Gleason v. Daly, 194 Mass. 348, 80 N. E. 486 (a witness present but
not attesting a will ; his statement "that it was a shame to make that man make a will, they
might as well have a dead man," held not improperly excluded by the trial Court; the
opinion sails rather close to the wind, in order to avoid overthrowing the trial Court's ruUng).
1911, Smith V. Holyoke St. R. Co., 210 Mass. 202, 96 N. E. 135 (a witness in a personal-in-
jury case to the fact of the car-gong not being rung until the collision ; whether he could be
contradicted by his opinion expressed to the conductor "it is no fajilt of you people," not
clear).
1909, Clow V. Smith, 85 Nebr. 668, 124 N. W. 140 (opinion admitted, on the facts).
1905, State v. Exum, 138 N. C. 599, 50 S. E. 283 ("Little did I think I would have married
a murderer," admitted against the defendant's wife).
1907, Holder v. State, 119 Tenn. 178, 104 S. W. 225 (murder; to impeach a witness who
testified to an alibi, her positive statement that the accused "did it," admitted).
1904, Eastern Texas R. Co. v. Scurlock, 97 Tex. 305, 78 S. W. 490 (witness to the value of his
own property).
1904, Parker v. State, 46 Tex. Cr. 461, 80 S. W. 1008 (defendant's daughter, not allowed to be
impeached by the statement "I believe that my father killed T.").
1905. Ku-k V. State, 48 Tex. Cr. 624, 89 S. W. 1067 ("I tried to keep K. from kiUing him,"
etc., excluded).
1905, Coolidge v. Ayers, 77 Vt. 448, 61 Atl. 40 (failure to assert a fact in former testimony,
admitted).
1913, State v. Hazzard, 75 Wash. 5, 134 Pac. 514 (murder by starvation ; a prior statement
by the prosecution's witness that the defendant had done nothing wrong, here excluded).
[Note 3; add:]
1901, 0'Regan v. Trench, L. R. 1 Ire. 274, 287, 297 (value of land ; inconsistent statements
admitted).
§ 1042. Silence, Omissions, or Negative Statements, etc.
[Note 2; add:]
1902, R. V. Higgins, 36 N. Br. 18, 24 (accused's silence, until his trial, as to G. being the real
murderer, admissible against him; good opinion by Harrington, J.).
1905, Hampton v. State, 50 Fla. 55, 39 So. 421 ("Have you testified to material facts here
to-day that'you did not testify to before the coroner's jury ? " excluded ; this is unsound).
1906, Larrance v. People, 222 111. 155, 78 N. E. 50 (failure to mention a fact in testimony
at an inquest ; not admitted, unless on a showing that he was asked on that point or asked
for all relevant facts).
1910, Parks v. State, 113 Md. 338, 77 Atl. 603 (robbery; prosecuting witness identified
defendant; a letter of his, stating that he did not know who struck him, admitted).
1905, Thompson v. Mecosta, 141 Mich. 175, 104 N. W. 694 (witness' failure to deny a state-
ment of R. in- his presence, not admitted, there being on the facts no duty to speak).
1904, State v. RoSa, 71 N. J. L. 316, 58 Atl. 1010 (omitting to state a material circumstance
in former testimonyj admitted).
225
§ 1042 IMPEACHMENT; SELF-CONTRADICTION
[Note 2 — continued]
1906, Green v. Dodge, 79 Vt. 73, 64 Atl. 499 (former failure to dispute the amount of rent,
admitted).
1913, Hilton v. Hayes, 154 Wis. 27, 141 N. W. 1015 (excluded ; no authority cited).
§ 1043. Silence, etc., as constituting the Testimony to be Impeached.
[Note 1; add:]
1904, People v. Creeks, 141 Cal. 532, 75 Pac. 101 (rule approved). 1905, People v. Cook,
148 id. 334, 83 Pac. 43 (rule affirmed). 1909, Bollinger v. Bollinger, 154 Cal. 695, 99 Pac.
196.
1913, South Covington & C. St. R. Co. v. Finan's Adm'x., 153 Ky. 340, 155 S. W. 742.
■1914, Corsick v. Boston Elevated R. Co., — Mass. — , 105 N. E. 600.
1903, Dunk v. State, 84 Miss. 452, 36 So. 609 (following, but misconceiving, the ruling in
Williams v. State, Miss, quoted ante, § 1038).
1913, State v. D'Adame, 84 N. J. L. 386, 86 Atl. 414 (on failure to identify on the stand, a
former identification was admitted). 1913, State v. Kysilka, 84 N. J. L. 6, 87 Atl. 79
(similar).
1910, State v. Yee Gueng, 57 Or. 509, 112 Pac. 424 (a ruling which exhibits the useless quib-
bling induced by over-particularity in drawing this distinction).
1907, Ozark v. State, 51 Tex. Cr. 106, 100 S. W. 927 (prior affirmative statements by the
prosecution's witness, not allowed to be proved by the prosecution where the witness had
failed to testify to that effect).
Where the witness now expressly denies a fact, on direct examination, contrary to the
expectation of the party calling, the principle of impeaching one's own vntness by showing
a former contrary assertion becomes involved (ante, §§ 905, 1018, n. 2).
§ 1044. Explaining away the Inconsistency; in general.
[Note 1; add:]
1903, People!). Glover, 141 Cal. 233,74 Pac. 745 (explaining that the former statement was
not true).
1904, Spearman v. Sanders, 121 Ga. 468, 49 S. E. 296.
1907, Hirsch & S. I. & R. Co. v. Coleman, 227 111. 149, 81 N. E. 21.
1904, Strebin v. Lavengood, 163 Ind. 478, 71 N. E. 494 (affidavits).
1908, Tonopah Lumber Co. v. Riley, 30 Nev. 312, 95 Pac. 1001 (conversation with R.,
admitted by way of explanation).
1906, Hoggan v. Cahoon, 31 Utah 172, 87 Pac. 164 (reasons for the inconsistent statements).
[Note 1 ; add, at the end :]
For the use of prior consistent statements, to corroborate a witness who has been impeached
by an inconsistent failiwe to speak on a former occasion, see post, § 1129.
§ 1045. Putting in the Whole of the Contradictory Statement.
[NoU2; add:]
1906, Hupfer v. National Dist. Co., 127 Wis. 306, 106 N. W. 831 (witness allowed to put in
parts of his former testimony in explanation ; English rule followed).
§ 1048. Nature of Admissions.
[Note 4; add:]
1905, Castnerii. Chicago, B. & Q.R. Co., 126 la. 581, 102 N. W.499 ("substantive evidence").
1908, McManus v. Nichols-ChisholmL. Co., 105 Minn. 144, 117 N. W. 223 (here the opinion
226
IMPEACHMENT; ADMISSIONS § 1051
[Note 4 — contimted]
was merely pointing out that admissions are something more than self-contradictions of
the party's testimony if he testifies).
The following opinion illustrates the failure of justice that may occur where any stress-
is laid on this doctrine of admissions being "affirmative proof."
1909, Gibson v. Boston, 75 N. H. 405, 75 Atl. 103.
. [Text, p. 1218 ; at the end, add a new note 5 :]
^ The oft-repeated warning against the slight weight of oral admissions or. confessions on
account of their liability to misunderstanding or distortion by the witness hearing them,
is due to the principle of Completeness, and is considered thereunder (post, § 2094, ante,
§ 866).
1049. Admissions, distinguished, etc. ; Death not Necessary.
[Note 2; add:]
1910, Abbott V. Walker, 204 Mass. 71, 90 N. E. 405.
1905, Stewart v. Doak Bros., 58 W. Va. 172, 52 S. E. 95.
§ 1051. Admissions, distinguished, etc.; Prior Warning not Necessary.
[Note 1, par. 1 ; add, under Accord :]
1911, Roberts v. State, 25 Del. 2 Boyce, 385, 79 Atl. 396.
1911, Howard v. Illinois Central R. Co., 116 Minn. 256, 133 N. W. 557.
1906, State v. Allen, 34 Mont. 403, 87 Pac. 177.
1905, State v. Wertz, 191 Mo. 569, 90 S. W. 838.
1907, Southern Bank v. Nichols, 202 Mo. 309, 100 S. W. 613.
1907, State v. Emerson, 78 S. C. 83, 58 S. E. 974.
1905, Coolidge v. Ayers, 77 Vt. 448, 61 Atl. 40.
1905, State v. Strpdemeier, 40 Wash. 608, 82 Pac. 915.
Not decided:
1907, Goss V. Goss, 102 Minn. 346, 113 N. W. 690 (not decided.)
[Note 2; add:]
1916, Carey v. Nissle, 145 Mich. 383, 108 N. W. 733 (vendor testifying).
So also the following peculiar situation : 1911, Johnson v. Johnson, 78 N. J. Eq. 507, 80
Atl. 119 (divorce for adultery, the adulterous act being a rape ; the defendant's plea of nolo
contendere on the rape charge, here received to impeach the defendant testifying for himself,
as involving both a crime and a self-contradiction ; whether receivable as an admission,
not decided ; this hesitation of the Court was unfounded).
[Note 3, 1 5; add:]
1905, Miller v. People, 216 111. 309, 74 N. E. 743 (a defendant's testimony on a former trial
may be read against him as containing admissions, though he does not take the stand now ;
three judges dissenting, on the principle of § 2272, post, citing no authority; the dissent is
totally without grounds).
[Note 3, at the end ; add:]
The following ruling is preternaturally finicky and marks an acme of technicaJism :
1909, State v. Minnick, 54 Or. 86, 102 Pac. 605 (the defendant having testified and having
denied certain contradictory statements, they were proved on rebuttal; held that if admis-
sions, they should have been proved in chief, and if only testimonial self-contradictions,
the Court should have limited them to that purpose).
227
§ 1053 IMPEACHMENT; ADMISSIONS
§ 1053. Admissions, etc. ; Personal Knowledge, Infancy.
[Note 1, par. 1 ; add ;]
Accord: 1906, Stone v. Stone, 191 Mass. 371, 77 N. E. 845 (opinion).
1908, Binewicz v. Haglin, 103 Minn. 297, 115 N. W. 271, semble (admissions of, negli-
gence).
1913, Hilton V. Hayes, 154 Wis. 27, 141 N. W. 1015 (held not improperly excluded on the
factfe).
Contra: 1913, Muidock v. Adamson, 12 Ga. App. 275, 77 S. E. 181 (father's action for son's
death; father's admissions of son's negligence, based solely on son's statements, held id-
admissible ; no authority cited on the present point ; opinion confused).
[Note 2; add:]
Contra: 1904, Knights Templar & M. L. I. Co. v. Crayton, 209 111. 550, 70 N. E. 1066 (this
is "suggested").
Compare § 1063, n. 1, post, at the end.
For a guardian's admissions, see post, § 1076.
[Tea*, p. 1222 ; 1. 6 of this § ; after "testimonial credit," add a new note la :]
"• Accord: 1908, Binewicz v. Haglin, 103 Minn. 297, 115 N. W. 271.
§ 1054. Admissions excluded as evidence of Certain Facts.
[Text, p. 1223, 1. 3 of the section ; add a new note la ;]
i" The following statute belongs here :
Wis. St. 1911, c. 123, p. 125 (adding a new §4079m to Stats. : "in civil actions for damages
caused by personal injury no statement made or writing signed by the injured party within
72 hours of the time the injury happened or accident occurred shall be used in evidence
against the party making or signing the same unless such evidence would be admissible as
part of the res gestae"; this is a wretched piece of partisan legislation which merely adds
another artificial gag-rule to that series of manoeuvres that calls itself a trial ; the basis
of the statute is, of course, the supposed chicanery of defendants' claim-agents in securing
admissions during the injured person's disabled condition ; but the true remedy would be
to punish a few such agents where sharp practice is proved).
§ 1055. Admissions as Insufficient, etc.
[Text, par. (3) ; add a new note 1 :]
' For the doctrine that oral admissions are to be received with caution, owing to their
"liability to being misunderstood and misreported, see post, § 2094,, n. 4.
[Text, p. 1224 ; add a new par. (4) :]
(4) There is no fixed general rule that in civil cases an opponent's extra-
judicial admission is insufiicient, without other evidence, as the foundation of
a verdict for one or more facts. But when i the admission concerns the main
controverted fact in the case, and the opponent's admission is the only evi-
dence offered, some Courts show an inclination to follow a general maxim that
it is insufficient, at least, when the admission is one of conduct only.^ This
is of course merely an application of the general function of the judge to con-
trol a verdict based on insuflBcient evidence (post, §§ 2494, 2551).
1 1908, Binewicz v. Haglin, 103 Minn. 297, 115 N. W. 271 (admissions of negligence).
228
IMPEACHMENT; ADMISSIONS § 1058
§ 1056. Admissions, as distinguished from Estoppels, etc.
[Text, p. 1225 ; in the quotation from Corser v, Paul, 1. 1 :]
For "31 N. H.," read "41 N. H." '
[Note 5; add:]
1914, Peterson v. Pittsburg S. P. G. M. Co., — Nev. — , 140 Pac. 519.
1904, Lambeck v. Stiefel, 71 N. J. L. 320, 59 Atl. 460.
[Text, p. 1226, 1. 2 from above ; add new note 4a :]
*" An admission in evidence is different from a waiver in the substantive law of contracts,
property, etc. Whether the insurer's sending of a blank form for proof of claim, after he
knows of a fact negativing the claim, is a waiver, has been the subject of many rulings, but
the use of the phrase in such forms "shall not be construed as an admission" is misleading ;
it may be an admission evidentially, yet not a waiver ; e. ^. 1909, McCord v. Masonic Casualty
Co., 201 Mass. 473, 88 N. E. 6.
§ 1058. Admissions not Conclusive, etc.
[Note 2; add:]
1911, Massey-Harris Cq. v. Horning, 4 Sask. 448 (entries of payment in collection-books
of the plaintiff creditor, held not conclusive against him).
1907, Furlong & Meloy v. American Central F. Ins. Co., 136 la. 499, 113 N. W. 107 (plaintiff's
invoices and inventories).
1903, Davis v. Davis, 98 Me. 135, 56 Atl. 588 ("No mere admissions in pais, however
express or formal, are conclusive, unless they operate as an estoppel").
1909, Conant v. Evans, 202 Mass. 34, 88 N. E. 438 (admissions in correspondence).
1902, State v. Paxton, 65 Nebr. 110, 134,' 90 N. W. 983 (mistake of law may be
shown).
1904, Wesnieski v. Vanek, — Nebr. — , 99 N. "W. 258 (malicious prosecution ; plaintiff's
plea of guilty in the criminal prosecution, not conclusive).
1909, Mahon v. Rankin, 54 Or. 328, 102 Pac. 608.
1906, Com. V. Monongahela Bridge Co., — Pa. — , 64 Atl. 1058 (pleadings in another suit ;
cited post, § 1066, n. 2).
1909, Morgan v. U. S., 8th C. C. A., 169 Fed. 242 (affidavit allowed to be explained by de-
fendant as to his purpose in making it).
1906, MuUins v. Shrewsbury, 60 W. Va. 694, 55 S. E. 736 (pleading in another suit). 1909,
Dudley v. Niswander, 65 W. Va. 461, 64 S. E. 745 (controversy over a note; terms of a
contract made by one of the parties allowed to be contradicted, being merely used as an
admission).
1913, Hamilton v. Diefenderfer, — Wyo. — , 133 Pac. 1081.
[Note 4:-, add:]
1906, State v. Morin, 102 Me. 290, 66 Atl. 650 (liquor-nuisance ; why the defendant took out
a Federal license, allowed to be explained).
1905, Chamberlain v. Iba, 181 N. Y. 486, 74 N. E. 481 (meaning of abetter, explained).
1907, Yeska v. Swendrzynski, 133 Wis. 475, 113 N. W. 959 (explanation of an admission
made in a plea of guilty to a prosecution for the same act, allowed).
[Note 8; add:]
Unless of course the doctrine of estoppel by judicial admissions applies :
1912, Central Trust Co. v. Culver, 23 Colo. App. 317, 129 Pac. 253.
229
§ 1060 IMPEACHMENT; ADMISSIONS '
§ 1060. Implied Admissions ; Sundry Instances.
1905, People v. Hoffmann, 142 Mich. 531, 105 N. W. 838 (defendant's affidavit for a con-
tinuance, used as an admission).
1911, Wichita P. & N. W. R. Co. v. HoUoman, 28 Okl. 419, 114 Pac. 700 (admissions of
owner as to value in condemnation suit, received).
1905, Chadwick ». U. S., 141 Fed. 225, 238, — C. C. A. — (conspiracy to defraud; letters
written by defendant, though not shown to have been sent, received as admissions) .
For admissions by conduct, see ante, §§ 274-291.
§1061. Hypothetical Admissions; Offers to Compromise, etc.; General
Principle.
[Note 1; add,:]
Another amusing instance (probably originating in the same anecdote of Mr. Chitty) is
found in Mr. Guppy's celebrated proposal "without prejudice," to Esther Summerson
("Bleak House," c. IX) ; cited by Mr. (now Judge) John Marshall Gest, of Philadelphia,
in his richly interesting essay on The Law and Lawyers of Charles Dickens (44 Amer. Law
Eeg. N. s. 401 ; 1905 ; now reprinted in his " The Lawyer in Literature," Boston, 1913).
[iVote 3,1. 1; add:]
1906, Mackey v. Kerwin, 222 111. 371, 78 N. E. 817 (though a tender pleaded or paid into
court is a conclusive admission, a tender before trial not pleaded nor paid into court is not
conclusive).
[NoteZ,\. 4; add:]
Cases cited in Greenleaf on Evidence, I, § 205, and in 18 Harvard Law Review, 460.
[Note 4; aM:\
1905, Cecil v. Terr., 16 Okl. 197, 82 Pac. 654 (rape under age ; offer of settlement by defend-
ant's father, excluded).
Here compare the rulings as to impeaching a witness or a party by his agent's corrupt offers
(ante, §§ 278, 280, 962).
§ 1062. Offer to Compromise ; Law in Various Jurisdictions.
[Note 1, p. 1235; add, under Alabama:]
1912, Guimond v. Fidelity P. F. Ins. Co., N. Br. S. C, 2 D. L. R. 654, 662 (fire loss;
Barker, C. J. : "Interviews and negotiations with a view to a settlement of dispute, espe-
cially where they are expressly stated to be without prejudice, are inadmissible).
1913, Corby v. Foster, 29 Ont. L. R. 83, 13 D. L. R. 663 (father sued for son's tort;
defendant's conduct showing an inclination to pay and settle, held no evidence of a scienter
of the son's dangerous propensity).
1904, Matthews v. Farrell, 140 Ala. 298, 37 So. 325 (performance of contract ; admissions
of "distinct facts" made in the course of compromise negotiations, received).
1906, Sanders v. State, 148 Ala! 603, 41 So. 466 (rape ; offer of money to the prosecutrix'
father, to "squash" the charge, excluded).
1909, Hudson v. WiUiams, 6 Pen. Del. 550, 72 Atl. 985 (distinct admissions, though made
during negotiations for compromise, receivable).
1904, Teasley v. Bradley, 120 Ga. 373, 47 S. E. 925 (prior ruling in this case, 110 Ga. supra,
affirmed).
1906, McBride v. Georgia R. & E. Co., 125 Ga. 515, 54 S. E. 674 (a subsequent offer to com-
promise does not exclude prior independent admissions).
1905, Georgia R. & E. Co. v. Wallace, 122 Ga. 547, 50 S. E. 478 (plaintiff's wagon and driver
230
IMPEACHMENT; ADMISSIONS § 1062
[Note 1 — continued]
were injured by defendant's car; defendant's settlement with the driver for $25, not ad-
mitted on his re-direct examinatJbn).
r903, Kroetch v. Empire M. Co., 9 Ida. 277, 74 Pac. 868 (offer of compromise, excluded).
1905, Castner v. Chicago, B. & Q. R. Co., 126 la. 581, 102 N. W. 499 (an admission may
be explained by the party's uncommunicated intent to accept a lower amount in com-
promise).
1905, State v. Campbell, 129 la. 154, 105 N. W. 395 (defendant's settlement of a former
claim against the defendant, excluded).
1908, State v. Richmond, 138 la. 494, 116 N. W. 609 (burglary; defendant's offer to settle
with the robbed party, admitted).
1904, List's Ex'r v. List, — Ky. — , 82 S. W. 446 (rule applied).
1906, Finn v. New England T. & T. Co., 101 Me. 279, 64 Atl. 490 (an offer of money, made
before any demand for redress by the plaintiff, falls within the rule excluding offers of
compromise).
1907, Acker M. & C. Co. v. McGaw, 106 Md. 536, 68 Atl. 17 (offer made with a view to
compromise, excluded).
1904, Snow V. N. Y. N. H. & H. R. Co., 185 Mass. 321, 70 N. E. 205 (plaintiff's letter of
claim, admitted on the facts).
1910, Grebenstein v. Stone & Webster Eng. Co., 205 Mass. 431, 91 N. E. 411 (mere offer to
compromise, held inadmissible).
1904, Comstock v. Georgetown, 137 Mich. 541, 100 N. W. 788 (injury to a traction engine
and plaintiff at a bridge ; the township's settlement with the engine-owner, excluded).
1904, Mussebnan G. Co. v. Casler, 138 Mich. 24, 100 N. W. 997 (offer to settle, excluded).
1912, Crane v. Ross, 168 Mich. 623, 135 N. W. 83 (offer to settle for $25, excluded).
1905, Misner v. Strong, 181 N. Y. 163, 73 N. E. 965 (compromise negotiations admitted ;
the error, if any, held harmless; two judges diss.).
1906, Hindley v. Manhattan R. Co., 185 N. Y. 335, 78 N. E. 276 (damage by eminent
domain, the defendant pleading prescription ; the defendant's settlement with two hundred
other abutters, not admitted to rebut the claim of prescription; "the acknowledgment of
title in Tom and Dick is not an acknowledgment by impUcation of title in-Hany").
N. C. Rev. 1905, § 860, Code 1883, § 573 (offer to allow judgment, unaccepted, "cannot
be given in evidence").
1904, State v. Wideman, 69 S. G. 119, 46 S. E. 769 (malicious arson ; defendant's statement
of willingness to pay, though denying his guilt, admitted).
1910, Toledo St. L. & W. R. Co. v. Burr & Jeakle, 82 Oh. 129, 92 N. E. 27 (defendant's offer
of settlement for a fire loss, not allowed to be alluded to by counsel for the plaintiff in address-
ing the jury).
1912, Anadarko v. Argo, 35 Okl. 115, 128 Pac. 500 (city council's comjnittee recommenda?-
tion of a simi to be paid in settlement, with a finding that the city was indebted to the
plaintiff in that sum, admitted, but on the wrong theory).
1911, Weiss V. Kohlhagen, 58 Or. 144, 113 Pac. 46 (injury by an excavation; that the de-
fendant had settled with others "in the same position as plaintiff," allowed).
1909, Rabinowitz v. SulUvan, 223 Pa. 139, 72 Atl. 378 (distinct admission, made during
compromise proposals, admitted).
1906, Nickles v. Seaboard A. L. R. Co., 74 S. C. 102, 54 S. E. 255 (railroad wi-eck; that one
of the injured employees, testifying for defendant, had received a sum in settlement from
the defendant, admitted, citing no authority; Woods, J., diss, on the present ground;
but it was really admissible, if at all, on the principle of § 961, ante). 1911, Wade v. Southern
R. Co., 89 S. C. 280, 71 S. E. 859 (death by wrongful act; defendant introduced a release;
held that being in the case it might be considered, with reference to its interpretation as
an admission of liability).
1908, New York Life Ins. Co. v. Rankin, 8th C. C. A., 162 Fed. 103 (correspondence be-
tween attorneys during an unsuccessful attempt to effect a compromise, excluded).
231
§ 1062 ' IMPEACHMENT; ADMISSIONS
[Note 1 — continued]
1905, Chesapeake & O. R. Co. v. Stock, 104 Va. 97, 51 S. E. 161 (an offer of settlement of
claims, construed as not "an effort to buy peace," and adSnitted).
1906, Wade v. McDougle, 59 W. Va. 113, 52 S. E. 1026 (an expression of willingness to com-
promise as to a boundary, held ineffective).
1907, Taylor v. Tigerton Lumber Co., 134 Wis. 24, 114 N. W. 122 (offers made during
negotiations for compromise, excluded).
§ 1063. Admissions in Pleadings ; Attorney's Admissions.
[Note 1, par. 1; add:]
1910, Godwin v. State, 1 Boyce, 24 Del. 173, 74 Atl. 1101 (bribery of a voter; the prosecut-
ing" attorney before offering evidence addressed the Court stating certain admissions by the
defendant in conference with him ; held that the silence of defendant's counsel was evidence
of assent to the correctness of the statements thus made by the prosecuting attorney).
1908, McDermott v. Mahoney, 139 la. 292, 115 N. W. 32, semble (counsel's statements
during a former trial making a concession upon the opponent's offer of evidence, admissible).
1906, Liberty v. Haines, 101 Me. 402, 64 Atl. 665 (letter from the plaintiff's attorney stating
an assignment of the claim, admissible).
1906, Cadigan v. Crabtree, 192 Mass. 233, 78 N. E. 412 (counsel's answer to a question of
the judge at a prior hearing of the same issue, excluded).
1905, Hicks v. Naomi F. M. Co., 138 N. C. 319, 50 S. E. 703 (certain admissions of the at-
torney at a former trial, excluded).
1907, Virginia-CaroUna C. Co. v. Knight, 106 Va. 674, 56 S. E. 725 (letter of an attorney
naming the witnesses to be summoned, excluded).
1910, United States, for use of E. L. C. Co. v. U. S. FideUty & G. Co., 83 Vt. 278, 75 Atl. 280
(counsel's admissions of fact of issue, made during presentation of evidence, held binding).
[Note 1 ; add a new paragraph 3 :]
It is sometimes said that the incompetency of evidence (here in a partition suit) cannot
be waived by counsel for infant defendants :
1906, Compher v. Brownmg, 219 111. 429, 76 N. E. 678 (no authority cited).
1904, Jesperson v. Mech, 213 111. 488, 72 N. E. 1194 (no authority cited).
But surely this is erroneous ; for if counsel are authorized to act at all, in particular, to raise
objections, they are certainly empowered to waive them. Compare § 1053, n. 2, ante,
and § 1076, n. 7, post.
A counsel has of course the same authority for infant's guardian ad litem as for any bther
client :
1911, Byrnes v. Butte Brewing Co., 44 Mont. 328, 119 Pac. 788.
§ 1064. Common-Law Pleadings in the Same Cause, etc.
[Note 1 ; add :] '
1904, Yates v. People, 207 111. 316, 69 N. E. 775 (if introduced by the opponent, he is bound
by them).
1905, Palmer T. Co. v. Eaves, — Ky. — , 85 S. W. 750 (here erroneously said that the op-
ponent's pleadings may be "introduced in evidence").
1911, Holbrook v. Quinlan & Co., 84 Vt. 411, 80 Atl. 339 (plea of former judgment, held
conclusive as to two items remitted therefrom).
[Note 2, col 1; add:]
1905, Fudge v. Marquell, 164 Ind. 447, 73 N. E. 895 (contract ; confession and avoidance).
1906, Fifer v. Clearfield & C. C. Co., 103. Md. 1, 62 Atl. 1122.
232
IMPEACHMENT; ADMISSIONS § 1067
[Note 2, at the end ; add :]
1905, People v. Hoffmann, 142 Mich. 531, 105 N. W. 838 (affidavit for a continuance).
§ 1066. Common-Law Pleadings in Other Causes.
[NoU2; add:]
1905, De Montague v. Bacharach, 187 Mass. 128, 72 N. E. 938 (subsequent pleading of
defendant in a second suit concerning the same contract, admitted merely to show that
the defendant had pleaded the statute of limitations ; Dennie v. Williams, supra, distin-
guished).
1913, Salo V. Duluth & I. R. Co., 121 Minn. 78, 140 N. W. 188 (original of an amended
complaint, not verified nor signed by the plaintiff, excluded, following Vogel v. Osborne).
1906, Com. V. Monongahela Bridge Co., 216 Pa. 108, 64 Atl. 909 (quo warranto ; thedefend-
ant's answer in a prior suit for taxes, admitted, but not as conclusive).
1902, Murmutt v. State, — Tex. Cr. App. — , 67 S. W. 508 (plea of guilty on a charge of
theft, admitted on a charge of burglary).
U. S. Rev. St. 1878, § 860 (now repealed ; quoted post, § 2281, n. 6). 1904, Miller v. U. S.,
133 Fed. 337, 350, 66 C. C. A. 399 (conspiracy to use the mails to defraud ; arguments of
the defendant's aitorney before a State insurance commissioner when opposing a rival's
attempt to do business there, not admitted). 1913, Oregon & Cal. R. Co. v. Grubissich,
9th C. C. A., 206 Fed. 577 (sworn answer in another suit bearing the party's name, but
not shown to have been personally signed by or known to the party, excluded).
[Note 7; add:]
1904, Wesnieski v. Vanek, — Nebr. — , 99 N. W. 258 (malicious prosecution ; plaintiff's
plea of guilty in the criminal prosecution, admitted).
Some instances of the use of a former plea in a criminal case used in a subsequent crimi-
nal case will be found in the citations supra, n. 2, and post, § 1067.
[Note 9; add:]
1912, Coleman v. Jones & Pickett, 131 La. 803, 60 So. 243 (attorney's testimony, that the
allegation was made without knowledge of the party).
[Text, p. 1249 ; at the end of § 1066, add:]
The complicated doctrine of judicial estoppel is here to be distinguished.^"
^» A careful examination of the doctrine and its precedents will be found in the following
opinion by Provosty, J. : 1913, Farley v. Frost-Johnson L. Co., 133 La. 497, 63 So. 122.
§ 1067. Superseded or Amended Pleadings.
[Text, p. 1250, 1. 3 from below; add:i
1903, Hon. A. C. Plowden, " Graih or Chaff; the Autobiography of a Police Magis-
trate," p. 156 : "[When I was barrister on the Stafford Assizes,] I had been briefed to
defend a man on a charge of horse-stealing ; and, as briefs were scarce, I had no idea of
letting the case go without a fight. As chance would have it, the prisoner was arraigned
during the luncheon hour when I had left the court, and I was disgusted to find on re-
turn that he had actually pleaded ' Guilty.' I at once sought the judge, [Baron Bram-
we^l,] and asked him privately ta let the plea be withdrawn, Explaining to him my posi-
tion, and assuring him that had I been in. court I should have advised the prisoner
differently. The learned Baron demurred at first, but seeing my earnestness he gave
way, and the prisoner was permitted to withdraw his plea. The trial came on ; and
after I had addressed the jury with much fervor, the learned Baron proceeded to sum
233
§1067 IMPEACHMENT; ADMISSIONS
[Text, p. 1250 — continued]
up as follows : ' Gentlemen of the jury, the prisoner at the bar is indicted for stealing a
horse. To this charge he has pleaded Guilty; but the learned counsel is convinced
this was a mistake. The question, therefore, is one for you, gentlemen, which of them
you will believe. If you should have any doubt, pray bear in mind that the prisoner
was there and the learned counsel wasn't.' Laughter from every part of the court seemed
to follow this terse exposition. ... I could not doubt, however, the absolute justice of
the verdict that followed."
[Note 1; add:]
1907, Pollitz V. Wickersham, 150 Cal. 238, 88 Pac. 911 (the California rule as to superseded
pleadings held not applicable to exclude a creditor's claim formerly presented by plaintiffs
to defendant and differing from the later one relied on at the trial).
1909, Arkansas City v. Payne, 80 Kan. 353, 102 Pac. 781 (answer and dismissed cross-peti-
tion, allowed to be read).
1889, Com. ». Brown, 150 Mass. 330, 23 N. E. 49 (accused's plea of guilty before the magis-
trate on complaint, admitted).
1888, People v. Gould, 70 Mich. 240, 38 N. W. 232 (request to the justice to be allowed to
withdraw a plea of not guilty, and to plead guilty, admitted).
1904, Bernard v. Pittsburg Coal Co., 137 Mich. 279, 100 N. W. 396 (not decided).
1905, Stearns v. Kennedy, 94 Mirni. 439, 103 N. W. 212 (verified amended answer, admitted).
1913, Salo V. Duluth & I. R. Co., 121 Minn. 78, 140 N. W. 188 (cited ante, § 1066, n. 2).
1906, Overton v. White, 117 Mo. App. 576, 93 S. W. 363 (abandoned answers, admitted).
1882, Adams v. Utley, 87 N. C. 356 (amended answer, admitted ; "as a declaration of the
defendant, it can lose none of its vigor because of that circumstance").
1906, Norcum v. Savage, 140 N. C. 472, 53 S. E. 289 (parts of an original answer, admitted).
1909, Leistikow v. Zuelsdorf, 18 N. D. 511, 122 N. W. 340 (not decided).
1906, Page v. Geiser Mfg. Co., 17 Okl. 110, 87 Pac. 851 (here the original of an amended
pleading in the probate court below was erroneously treated as a binding admission ; "the
plaintiff . . . is bound by the admissions made in his original answer"). 1906, Limerick
V. Lee, 17 Okl. 145, 87 Pac. 859 (the original of an amended petition in a lien proceeding
held admissible but not conclusive ; this Court has not let its left hand know what its right
was inditing, for this and the preceding opinion were written by the same judge, and were
filed on the same day, but neither opinion distinguishes or refers to the other ; illustrating
that a youthful Commonwealth can quickly enough plunge into that mire of legal uncer-
tainty which has been supposed to be an inheritance of the older ones only).
1909, Elliff V. Oregon R. & N. Co., 53 Or. 66, 99 Pac. 76 (withdrawn complaint, receivable).
1905, O'Connell v. King, 26 R. I. 544, 59 Atl. 926, semble (a withdrawn plea of tender may
be used as an admission, subject to explanation).
1903, Orange R. M. Co. v. Mcllheimy, 33 Tex. Civ. App. 592, 77 S. W. 428 (abandoned
pleading, admitted). 1903, Texas & P. R. Co. d. Goggin, 33 Tex. Civ. App. 667, 77 S. W.
1053 (similar ; that it is not signed or sworn to by the party is immaterial).
1905, State v. Bringgold, 40 Wash. 12, 82 Pac. 132 (accused's plea of guilty before the jus-
tice of the peace, afterwards withdrawn, admitted).
1883, Norris v. Cargill, 57 Wis. 251, 256 (original of an amended answer, allowed to be
read to the jury as an admission "for what it was worth"). 1905, Schultz v. Culbertson,
125 Wis. 169, 103 N. W. 234 (original of an amended pleading, unverified and unsigned,
admitted) . 1909, Schoette v. Drake, 139 Wis. 18, 120 N. W. 393 (original answer, admitted) .
[Note 2; add:]
1906, Liberty v. Haines, 101 Me. 402, 64 Atl. 665 (attorney's letter, not offered in evidence,
but merely placed on file for a motion, not regarded as introduced).
1908, Raapke & K. Co. v. Schmoeller & M. J. Co., 82 Nebr. 716, 118 N. W. 652 (but not
when the amendment was made after trial begun).
234
IMPEACHMENT; ADMISSIONS § 1072
§ 1070. Admissions by Reference to a Third Person.
[Notel; add:]
1904, Drake v. Holbrook, — Ky. — , 78 S. W. 158 (defendant told F. to tell the witness
"anything I wanted to know" ; admitted).
1904, Skidmore v. Johnson, 70 N. J. L. 674, 57 Atl. 450 (a letter written by the defendant's,
daughter, which he had directed her to write, "without her telling what to write or being
told what she did write," admitted).
1907, State v. Werner, 16 N. D. 83, 112 N. W. 60 (conversation in which the defendant
referred a third person to a doctor for information, allowed to be proved by the doctor,
though the doctor's own knowledge might have been privileged).
§ 1071. Third Person's Statement assented to by Party's Silence.
[Note 1; add:]
1911, Gibbons v. Terr., 5 Okl. Cr. 212, 115 Pac. 129.
1906, State v. Sudduth, 74 S. C. 498, 54 S. E. 1013.
Where all conditions exist except that it does not appear whether the party was silent
or denied, an objection based on this point must specifically point it out at the time (apply-
ing the principle of § 18, n. 21, ante).
1908, Raymond v. State, 154 Ala. 1, 45 So. 895 (McClellan, J., diss.).
§ 1072. Same; Specific Rules, etc.
[Note 1; add:]
1906, People v. Weber, 149 Cal. 325, 86 Pac. 671 (a mother's statement in the defendant's
presence, excluded). 1910, Snowball's Estate, 157 Cal. 301, 107 Pac. 598 (statements of
ill-treatment, by testatrix in the presence of an heir, admitted). 1910, People v. Rollins,
14 Cal. App. 134, 111 Pac. 123 (evasive replies upon hearing letters read aloud to him;
the letters admitted).
1906, Kevern v. People, 224 111. 170, 79 N. E. 574 (rape; the father's repetition to the
accused of his daughter's charge against him, admitted, but only "in substance," and not
the precise words ; this is trivial and unsound ; three judges diss.).
1906, Eaton v. Com., — Ky. — , 90 S. W. 972 (general rule stated).
1906, Finch v. Com., — Ky. — , 92 S. W. 940.
1907, State v. Quirk, 101 Minn. 334, 112 N. W. 409 (defendant's silence when his wife
stated why he killed, admitted).
1911, State V. Lovell, 235 Mo. 343, 138 S. W. 523 (by deceased, in defendant's presence,
admitted).
1906, State v. Johnson, 73 N. J. L. 199, 63 Atl. 12 (liquor at a polling-place ; remarks about
it, in defendant's presence, admitted).
imS, Boney v. Boney, 161 N. C. 614, 77 S. E. 784.
1905, State v. Major, 70 S. C. 387, 50 S. E. 13 (larceny).
1906, State v. Mungeon, 20 S. D. 612, 108 N. W. 552 (incest ; the father's silence when
charged by the daughter as her child's father, in the presence of a Children's Home agent,
admissible).
1905, Phelan v. State, 114 Tenn. 483, 88 S. W. 1040 (defendant's silence, just after a homi-
cide, when his wife stated that he had provoked the affray ; an over-strict opinion).
1909, Crowell v. State, 56 Tex. Cr. 480, 120 S. W. 897 (murder).
1909, Hanger v. U. S., 4th C. C. A., 173 Fed. 54, 59 (defendant's wife's statements, in his
presence, to the arresting officer, excluded).
[Note 3; add:]
1904, Watson v. Bigelow Co., 77 Conn. 124, 58 Atl. 741 (whether the acceptance of goods
without protest is an admission that they comply with the contract).
235
§ 1072 IMPEACHMENT; ADMISSIONS
[Note 3 — continued]
1905, Nichols v. New Britain, 77 Conn. 965, 60 Atl. 655 (failure to include an item in a claim
of damages; inference allowed).
1904, People ex rel. Hillel Lodge v. Rose, 207 111., 352 69 N. E. 762 (St. 1901, May 10, ap-
plied and held constitutional ; the statute makes a corporation's f ailm-e to file an annual
report prima facie evidence of non-user).
1911, Donovan v. Selinas, 85 Vt. 80, 81 Atl. 235 (ownership as between husband and wife;
the husband's failure to make claim, admitted).
Compare the cases cited ante, § 284, which are sometimes hardly distinguishable in
practice.
[Note 4; add:]
1905, State v. Rosa, 72 N. J. L. 462, 62 Atl. 695 (conversation in a jail).
1913, Gila Valley G. & N. R. Co. ». Hall, 232 U. S. i94, 34 Sup. 229 (person less than 20
yards away ; left to the trial Cotirt).
[Note 5; add:]
1909, Sorenson v. U. S., 8th C. C. A., 168 Fed. 785 (Weightnovel v. State followed, in a rul-
ing over-strict).
[Note 7; add:]
1905, Bloomer v. State, 75 Ark. 297, 87 S. W. 438 (statement in the presence of the accused
when drunk, excluded).
1913, State v. Kysilka, 84 N. J. L. 6, 87 Atl. 79 (identification of the accused by a witness
speaking another language ; excluded).
1906, Parulo v. Philadelphia & R. R. Co., 145 Fed. 664, 669, C. C. A. (remarks by a rail-
road employee to a physician in the presenile of the injured plaintiff, excluded).
[Note 8; add:]
1906, Lumpkin v. State, 125 Ga. 24, 53 S. E. 810 (excluded on the facts).
1907, State v. Barath, 47 Wash. 283, 91 Pac. 977 (statements by the injured person, made
in adjoining room and not addressed to defendant, excluded, under the circumstances;
also statements relating to matters prior to the assault).
[Note 10; add:]
1910, Thompson's Case, 4 Cr. App. 45 (accomplice's statement, read out by a policeman in
the presence of the accused, who immediately said, "This is a pack of lies" ; held admissible ;
the opinion shows a most singular and apparently hopeless misunderstanding of the princi-
ples applicable to this class of evidence; on appeal, [1910] 1 K. B. 640, affirmed, but the
opinion, while repudiating the extreme view that only statements expressly admitted to
be true are receivable, holds that any statement read in the accused's presence is admissible
subject to such weight as may be given, and ignores the vital fact that the accused here
promptly denied the statement in toto). 1910, Norton's Case, 5 Cr. App. 7, 65, 2 K. B. 496
(rape under age ; the child made a charge in the accused's presence, which he denied ; held
inadmissible; here an admirable opinion, by Pickford, J., accurately and fully expounds
the principle). 1910, Atherton's Case, 5 Cr. App. 233 (Norton's Case followed), ipil,
Murtrie's Case, 6 Cr. App. 128 (similar). 1911, Hickey's Case, 6 Cr. App. 200 (similar).
1911, Stroud's Case, 7 Cr. App. 38 (Norton's Case followed).
1908, Raymond v. State, 154 Ala. 000, 45 So. 895 (larceny ; the owner's statement, charging
defendant under arrest, and not denied, admitted; approving the text above). 1913,
Simmons v. State, — Ala. — , 61 So. 466 (statement in presence of accused under arrest,
admitted).
1911, People V. Wong Loung, 159 Cul. 520, 114 Pac. 829 (excluded on the facts).
236
IMPEACHMENT; ADMISSIONS § 1072
[Note 10 — continued]
1913, People v. Tielke, 259 111. 88, 102 N. E. 229 (interview between the accused under
arrest, his sister, two policemen, and the prcsecuting attorney; the sister's statements
admitted, as being impliedly assented to by him). 1914, People v. Pfanschmidt, 262 111.
411, 104 N. E. 804 (statements excluded on the facts).
1904, Merriweather v. Com., 118 Ky. 870, 82 S. W. 592 (Com. v. Kenney, Mass., followed;
here the defendant was under arrest, at a railroad depot, in the presence of spectators and
fellow-prisoners) .
1905, State v. Swisher, 186 Mo. 1, 84 S. W. 911 (State v. Foley followed). 1905, State v.
Ethridge, 188 Mo. 352, 87 S. W. 495 (defendant's wife's statements made in his presence
to the constable arresting him, excluded). 1906, State v. Richardson, 194 Mo. 326, 92 S.
W. 649 (State v. Foley followed).
1907, State v. Kelleher, 201 Mo. 614, 100 S. W. 470 (statements by the deceased in the
presence of the accused under arrest, excluded).
1907, O'Hearn v. State, 79 Nebr. 513, 113 N. W. 130 (excluded, on the facts).
1906, People v. Cascone, 185 N. Y. 317, 78 N. E. 287 (deceased's statement, made in the
accused's presence, excluded, because on the facts, the parties being Italians but English
also being used, it did not appear that the accused understood questions and answers).
1911, People V. Conrow, 200 N. Y. 356, 93 N. E. 943 (here the district attorney improperly
recounted in detail the accomplice's story to which the defendant had refused to make
answer).
1904, Geiger v. State, 70 Oh. 400, 71 N. E. 721 (wife-murder ; the accused was brought be-
fore the chief of police, under arrest, and in his presence his child of four years recounted
a story of the murder in answer to questions of the police ; his silence was held not to admit
this conversation ; an over-strict ruling ; the Court inappropriately stigmatizes the occa-
sion as a "star-chamber investigation").
1910, Com. V. Aston, 227 Pa. 112, 75 Atl. 1019 (failure to deny accomplice's confession be-
fore chief of police, admitted).
1906, State v. Sudduth, 74 S. C. 498, 54 S. E. 1013 (dying victim's accusation of the accused
in the jail, admitted). 1913, State v. Mcintosh, 94 S. C. 439, 78 S. E. 327 (excluded on the
facts).
1910, Couch V. State, 58 Tex. Cr. 505, 126 S. W. 866 (Gardiner Case approved).
1912, Hardy v. State, 150 Wis. 176, 136 N. W. 638 (rape; identification of the accused,
when arrested, by the victim, without response by the accused, admitted).
[Note 11; add:]
1906, Foster v. Hobson, 131 la. 58, 107 N. W. 1101 (plaintiff's silence during counsel's
assertion in another trial, when she was not a party, that her husband owned the farm now
claimed by her, held not an admission).
1904, Thayer v. Usher, 98 Me. 468, 57 Atl. 839 (statements of U. in a court on the stand,
the defendant being present and not denying, excluded).
1907, Hauser v. Goodstein, 75 N. J. L. 66, 66 Atl. 932 (defendant's silence during testimony
to an agency, excluded).
1909, State v. Jackson, 150 N. C. 831, 64 S. E. 376 (silence during testimony at an election
commissioners' hearing, not received as an admission).
1909, Thorp's Will, 150 N. C. 831, 64 S. E. 379 (testator's silence during a former trial when
his counsel argued that he was insane, not received as an admission).
1911, Parrott v. State, 125 Tenn. 1, 139 S. W. 1056 (defendant's silence at other trials, when
hearing witnesses' charges; inference not allowed).
[Note 13; add:]
1914, People v. Harrison, 261 111. 517, 104 N. E. 259 (the accused's reply that the narrator
is a Kar is a sufficient negation of silent assent to any part of the statement).
1907, Johnson v. State, 90 Miss. 317, 43 So. 435.
237
§ 1072 IMPEACHMENT; ADMISSIONS
[Note 13 — continued]
1913, State v. D'Adame, 84 N. J. L. 386, 86 Atl. 414.
1910, State v. Swenson, 26 S. D. 589, 129 N. W. 119.
§ 1073. Third Person's Document; Unanswered Letter, etc.
[Note 1; add:]
1906, Rogers v. Krumrei, 143 Mich. 15, 106 N. W. 279 (memorandum of a contract, made
by one party in the sight of the other, admitted against the latter).
1905, Pacific Export L. Co. v. North P. L. Co., 46 Or. 194, 80 Pac. 105 (memorandum
dictated by A in B's^jresence to a stenographer, typewritten, and a copy given to B, received
for A as an admission of B).
[Note 2, par. 1 ; add:]
1909, Snell v. Wilson, 239 111. 279, 87 N. E. 1022 (similar^to Razor v. Razor; cited more
fully ante, § 260).
1905, Knox V. State, 164 Ind. 226, 73 N. E. 255 (letter found on the accused when arrested,
admitted).
1909, Sorenson v. U. S., 8th C. C. A., 168 Fed. 785 (certain incriminating letters from de-
fendant's wife, not admitted).
The following case is peculiar :
1912, State v. McFarland, 83 N. J. L. 474, 83 Atl. 993 (wife-murder ; the defendant's inten-
tion to rid himself of his wife being in issue, letters of his paramour addressed to him,
referring to his expressed intention to get a divorce, and retained by him, were held inad-
missible for the purpose, as not having been impliedly assented to ; five judges dissenting ;
the dissent is clearly correct ; the majority opinion overstrains the test of admissibility ;
mere possession should suffice, leaving the possessor to explain if he can ; the learned judge's
statement that the reference in the text above to the consideration that "the party may
always exculpate himself," etc., is "an amazing suggestion in view of the disability of parties
to testify at common law" niight be answered by noting that that was precisely what Lord
Chief Justice Eyre permitted Home Tooke to do, supra, one hundred years ago ; the learned
Chief Justice's remark made in that case contains the good sense of the whole subject).
[Note 3, par. 1 ; add:]
1912, Seevers v. Cleveland Coal Co., — la. — , 138 N. W. 793 (contract ; certain unan-
swered letters, excluded, in a too finical ruling).
1905, Parker v. Farmers' F. Ins. Co., 188 Mass. 257, 74 N. E. 286 (insurer's failure to an-
swer a letter of the insured about the agent, held not an admission of its statement; the
ruling seems wrong on its facts).
1904, State Bank v. McCabe, 135 Mich. 479, 98 N. W. 20 (demand of money; failure to
reply held not to admit the statement of claim ; making an arbitrary distinction between
written and oral statements).
1905, Klein v. East River E. L. Co., 182 N. Y. 27, 74 N. E. 495 (receipt of a letter of the
defendant's attorney advising him that certain instruments were valid, held not an admis-
sion by the defendant).
1912, Curtsinger v. McGown, — Tex. Civ. App. — , 149 S. W. 303 (statement of claim for
services; failure to reply, held not an admission).
1906, Rumble v. U. S., 143 Fed. 772, 780, C. C. A. (unanswered letter, admitted on the
facts). 1913, Thrush v. FuUhart, 4th C. C. A., 210 Fed. 1 (breach of marriage promise;
plaintiff's letters to defendant after breach and after controversy arisen, excluded; no
authority cited).
1911, State V. Greene, 38 Utah 389, 115 Pac. 181 (a statement charging the defendant with
being the father of a bastard by M., shown to and read by him, and only partly denied ;
the statement admitted).
238
IMPEACHMENT; ADMISSIONS § 1074
[Note 4, par. 1; add:]
1904, Daytona Bridge Co. v. Bond, 47 Fla. 136, 36 So. 445 (the objection to the account
need not have been made immediately, but within a reasonable time).
Haw. St. 1905, No. 52, p. 102, Apr. 24 (account rendered, undisputed for six months, to be
prima facie evidence).
1908, Davis v. Stephenson, 149 N. C. 113, 62 S. E. 900 (exception to the rule, here applied).
[Note 4, par. 2 ; add, under (1) :]
1906, Little & H. I. Co. v. Pigg, — Ky. — , 96 S. W. 455.
1909, Ripley v. Sage L. & I. Co., 138 Wis. 304, 119 N. W. 108.
[Note 4, par. 2, at the end; add:]
So also the principle applies where a duplicate original of a delivery entry is handed to the
buyer at the time of a delivery : 1911, Federal U. Surety Co. i). Indiana L. & M. Co., 176
Ind. 328, 95 N. E. 1104.
[Note 5; add:]
1905, Haughton v. Mtna, L. Ins. Co., 165 Ind. 32, 73 N. E. 592.
1904, Knights Templar & M. L. I. Co. v. Crayton, 209 111. 550, 70 N. E. 1066 (ndt conclusive) .
1906, Jackman v. Brotherhood, 132 la. 64, 106 N. W. 350 (Supreme Tent v. Stensland,
206 111. 124, approved).
1908, Supreme Lodge K. of P. v. Bradley, — Ky. — . 109 S. W. 1178 (doctor's certificate).
1906, Krapp v. Metrop. L. Ins. Co., 143 Mich. 369, 106 N. W. 1107 (proofs of death in
general).
1886, Goldschmidt v. Ins. Co., 102 N. Y. 486, 492 (coroner's verdict, expressly denied in the
proofs to be true, excluded). 1896, Hanna v. Connecticut M. L. Ins. Co., 160 N. Y. 526,
44 N. E. 1099.
1903, Stevens v. Continental C. Co., 12 N. D. 463, 97 N. W. 862 (excluded as against an
infant).
1883, Insurance Co. v. Schmidt, 40 Oh. St. 112 (physician's answers, based on hearsay
excluded).
1906, Felix v. Fidelity M. L. Ins. Co., 216 Pa. 95, 64 Atl. 903 (suicide; physician's state-
ment, etc., in proofs of death, admitted).
1904, Fey v. I. O. O. F. Ins. Soc'y, 120 Wis. 358, 98 N. W. 206. 1913, Krogh v. Modern
Woodman, 163 Wis. 397, 141 N. W. 276.
The cases are collected and examined in an article by Professor A. M. Kales, in 6 Colum-
bia Law Review, 509 (1906), "Declarations of the Insured against the Beneficiary."
In Kentucky, the "proofs of loss" are not receivable at all against the beneficiary, except
as containing his own statements : 1904, American Benevolent Ass'n v. Stough, — Ky.
— , 83 S. W. 126.
§ 1074. Books of a Corporation or Partnership.
[Note 3, 1 1; add:]
Chesapeake & O. R. Co. v. Deepwater R. Co., 57 W. Va. 641, 50 S. E. 890 (1905).
[Note 4 ; add :]
In Chesapeake & O. R. Co. v. Deepwater R. Co., 57 W. Va. 641, 50 S. E. 890 (1905), there is
a full collection of njlings ; but the opinion of the majority does not appreciate the in-
herent distinctions of the subject ; Brannon, P., diss, on this point, expounds the correct
view, illustrating the discrimination above taken.
[Note 5; add:]
1908, Schlicher v. White, 74 N. J. L. 839, 71 Atl. 337 (suit for accounting).
239
§ 1074 IMPEACHMENT; ADMISSIONS
[Note 6; add:]
1911, Brown B. First Nat'l Bank, 49 Colo. 393, 113 Pac. 483 (embezzlement; bank's books
admitted).
1904, Norman P. S. Co. v. Ford, 77 Conn. 461, 59 Atl. 499 (a corporation record-book,
containing a certificate by a majority of the directors reciting a receipt of assets, excluded,
as not a regular entry in a book of account).
1906, Lowry Nat'l Bank v. Fickett, 122 Ga. 489, 50 S. E. 396 (not clear).
1912, Howard v. Strode, 242 Mo. 210, 146 S. W. 792 (whether L. J. H., deceased, was in
Decatur or St. Louis on Jan. 15, 1883 ; minutes of a stockholders' meeting in St. Louis,
reciting the presence of L. J. H., signed by him as secretary, and dated Jan. 16, 1883, also
an order-book with an entry by the same person on Jan. 15, 1883, admitted, as a regular
entry in the course of business).
Against an active officer the books are of course admissible, on the principle of § 1073,
par. (2), ante:
1908, State v. Hoffman, 120 La. 949, 45 So. 951 (knowing receipt of deposits, while insol-
vent, by a bank cashier; bank book entries admissible against defendant, though actual
knowledge must also be believed by the jury before finding guilt).
[Note 7; add:]
St. 1908, 8 Edw. VII, c. 69, § 220 (Companies Act;1 "where any company is being wound
up, all books and papers of the company and of the liquidators shall, as between the contrib-
utories of the company, be prima facie evidence of the truth of all matters purporting to
be therein recorded").
[Note 8, par. 1 ; add :]
1904, French v. Millville Mfg. Co., 70 N. J. L. 969, 59 Atl. 214 (question not decided ; here
the books were used to refresh the secretary's memory).
1905, Harrison v. Remington P. Co., 140 Fed. 385, 402, C. C. A. (Carey v. WilUams, supra,
followed ; but here the defendant's admissions were received, in the shape of certificates
signed on the stubs and corresponding assignments written in the certificate book).
1913, Oregon & Cal. R. Co. v. Grubissich, 9th C. C. A., 206 Fed. 577 (corporate records
— here of the plaintiff — not admitted to show the contents of a deed purporting to have
been made to the corporation 40 years before and copied in the minutes ; Ross, J., diss.).
1906, State ex rel. Biddle v. Superior Court, 44 Wash. 108, 87 Pac. 40 (following Turnbul
V. Payson, U. S.).
[Note 8, par. 2; add:]
Eng. . St. 1908, 8 Edw. VII, c. 69, § 33 (Companies Act ; "the register of members shall be
prima fade evidence of any matters by this Act directed or authorized to be inserted
therein").
Ont.: St. 1907, 7 Edw. VII, c. 34, § 119 (like Rev. St. 1897, c. 191, § 76).
Yukon: Consol. Ord. 190?, c. 56, § 53 (like Ont. Rev. St. 1897, c. 191, § 76).
Colo.: St. 1903, c. 77 (stock-book to be evidence against a stockholder).
§ 1075. Depositions in Another Trial, used, etc.
[Note 2, par. 1; add:]
1913, McCarty «. Kepreta, 24 N. D. 395, 139 N. W. 992, 1007 (afiidavit of a third person,
filed with the defendant's affidavit, held not necessarily to be taken as true in all parts).
1908, Patty v. Salem F. Co., 63 Or. 350, 96 Pac. 1106 (testimony of B., called for defendant
in another suit, not admitted ; the opinion treats it as a question of § 1072, ante, and ap-
parently ignores the present principle).
1907, Becker v. Philadelphia, 217 Pa. 344, 66 Atl. 564 (personal injuries ; the testimony of
240
IMPEACHMENT; ADMISSIONS §1077
[Note 2 — continued]
a physician, offered by the plaintifiP in a former suit against another defendant, admitted
for the present defendant as "adopted and used as her own" by the plaintiS).
So, also, on other principles, a party's, own deposition or affidavit may be used as a self-
contradiction (ante, § 1040, n. 3) or as a falsification showing consciousness of guilt {ante,
§ 278, n. 3).
§ 1076. Admissions of Other Parties to the Litigation, etc.
[Note 4 ; add :]
1904, State v. Brady, 71 N. J. L. 360, 59 Atl. 6'(rape-prosecutrix).
1905, State v. Hummer, 72 id. 328, 62 Atl. 388 (same).
1906, Brown v. State, 127 Wis. 193, 106 N. W. 536 (rape-prosecutrix).
[Note 5 ; add :]
Yet in some cases the contrary is a practically better rule : 1904, Starr B. G, Ass'n v. North
L. C. Ass'n, 77 Conn. 83, 68 Atl. 467 (admissions of members of a corporation may some-
times be received against the corporation ; good opinion by Hamersley, J.).
[NoUG; add:]
1914, Whisner v. Whisner, — Md. — , 89 Atl. 393.
1906, Stone v. Stone, 191 Mass. 371, 77 N. E. 845 (executor ; admitted).
1909, Gibson v. Boston, 75 N. H. 405, 75 Atl. 103.
[Note 7; add:]
1904, Knights Templar & M. L. I. Co. v. Crayton, 209 111. 550, 70 N. E. 1066.
But not of a guardian against the minor : 1905, Kidwell v. Ketler, 146 Cal. 12, 79 Pac.
514 ; this is really on the principle of § 1078, post.
For an infant's admissions against himself, see § 1053, ante, and § 1063, n. 1, at the end.
[Note 8; add:]
1903, Stevens v. Continental C. Co., 12 N. D. 463, 97 N. W. 862 (infant).
A counsel has of course the same authority for an infant's guardian ad litem as for any
client ; ante, § 1063, note 1.
[Note 10; add, under Accord:]
1907, Postal Tel. C. Co. v. Likes, 225 111. 24ff, 80 N. E. 136.
1905, Illinois C. R. Co. v. Houchins, 121 Ky. 526, 89 S. W. 530 (but the Court must instruct
as to its limited use).
[Note 10, at the end; add:]
1910, McCullough Bros. v. Sawtell, 134 Ga. 512, 68 S. E. 89 (joint claim ; admissions
received).
[Note 11, par. 1; add:]
So on a charge of adultery: 1868, Com. v. Thompson, 99 Mass. 444 (adultery).
1902, Terr. v. Castro, 14 Haw. 131 (adultery).
§ 1077. Privies in Obligation, etc.
[Note 2, par. 1; add:]
1910, Sanders v. Keller, 18 Ida. 590, 111 Pac. 350.
1911, Federal U. Surety Co. v. Indiana L. & M. Co., 176 Ind. 328, 95 N. E. 1104.
1904, Knott V. Peterson, 125 la. 404, 101 N. W. 173 (citmg cases).
241
§ 1077 IMPEACHMENT; ADMISSIONS
[Note 2 — contirmed]
1908, Kuhl V. Chamberlain, 140 la. 546, 118 N. W. 776 (banker's books).
1911, Atlas Shoe Co. v. Bloom, 209 Mass. 563, 95 N. E. 952 (debtor's admissions not re-
ceived against the guarantor).
1906, Jangraw v. Perkins, 79 Vt. 107, 64 Atl. 449.
1911, United American F. Ins. Co. «. American Bonding Co., 146 Wis. 573, 131 N. W. 994.
This principle is occasionally ignored through the tendency to look only at the state of
the parties under § 1076, ante; e. g. : 1904, McGowan v. Davenport, 134 N. C. 526, 47 S. E.
27 (trust deed of wife's separate property, to secure a debt recited to be that of husband and
wife ; the deceased husband's admissions that the debt was unpaid were excluded, because
his estate was not a party to the- action to foreclose).
§ 1078. Agent, Partner, Attorney, etc.
[Note 1; add:]
The provision in Georgia, Code 1895, § 3034, that "the declarations of an agent . . . are
not admissible against his principal unless they were a part of the negotiation and constitut-
ing the res gestoe, or else the agent be dead," has been properly construed to mean, not that
a deceased agent's statements are alwE^ys receivable though not a part of the res gestoe, but
that, apart from the present rule of res gestw, the deceased agent's statements may be
received as exceptions to the Hearsay rule whenever they fulfil the requirements of any of
those exceptions, e. g. as regular entries, statements against interest, ^tc. : 1905, Turner v.
Turner, 123 Ga. 5, 50 S. E. 969. ,
[Text, p. 1278, last line, after "argument"; add a new note la;]
'" The following enlightened opinion here marks a new departure :
1911, United American F. Ins. Co. v. American Bonding Co., 146 Wis. 573, 131 N. W.
994 (a report by an agent, made under a duty, but after his agency contract had expired,
held admissible; opinion by Barnes, J.; Kerwin and TimUn, J.J., diss.).
[Note 2, 1. 3; add:]
1903, Luman v. Golden A. C. M. Co., 140 Call 700, 74 Pac. 307.
1904, Redmon v. Metropolitan St. R. Co., 185 Mo. 1, 84 S. W. 26.
1904, Cook V. Stimson Mill Co., 36 Wash. 36, 78 Pac. 39.
[Note 2,1. S; add:]
1913, Forrester v. Southern Pacific R. Co., — Nev. — , 134 Pac. 753.
1904, Havens v. R. I. Suburban R. Co., 26 R. I. 48, 58 Atl. 247.
[Note 3; add:]
1903, Sweeney v. Sweeney, 119 Ga. 76, 46 S. E. 76 (agent of land).
1904, National Bldg. Ass'n v. Quin, 120 Ga. 358, 47 S. E. 962 (contract of loan).
1904, Baier v. Selke, 211 111. 512, 71 N. E. 1074 (brewmaster).
1904, Parker's Adm'r v. Cumberland T. & T. Co., — Ky. — , 77 S. W. 1109 (foreman).
1906, Shelbyville W. & L. Co. v. McDade, 122 Ky. 639, 92 S. W. 568 (engineer).
1905, Bachant v. Boston & M. R. Co., 187 Mass. 392, 73 N. E. 642 (railroad station-agent).
1906, McDonough v. Boston El. R. Co., 191 Mass. 509, 78 N. E. 141 (motorman).
1905, Poindexter & O. L. S. Co. v. Oregon S. L. R. Co., 33 Mont. 338, 83 Pac. 886 (railroad
section boss).
1904, Clancy v. Barker, 71 Nebr. 83, 98 N. W. 440 (hotel).
1905, Alden v. Grande R. L. Co., 46 Or. 593, 81 Pac. 385 (foreman of a logging camp).
1905, Austin v. Forbis, 99 Tex. 234, 89 S. W. 405 (injury by electricity).
1906, Baker v. Washington I. Co., 44 Wash. 697, 86 Pac. 1125 (drover).
1904, Kamp v. Coxe Bros. & Co., 122 Wis. 206, 99 N. W. 366.
242
IMPEACHMENT; ADMISSIONS § 1079
[Note 4, col. 1; add:]
1904, Russell v. Washington S. Bank, 23 D. C. App. 398, 406.
1906, Peyton v. Old Woolen M. Co., 122 Ky. 361, 91 S. W. 719.
1907, Ryle v. Manchester B. & L. Ass'n, 74 N. J. L. 840, 67 Atl. 87.
1905, Jackson v. American T. & T. Co., 139 N. C. 347, 51 S. E. 1015.
1914, Surbaugh v. Butterfield, — Utah — , 140 Pac. 757.
1913, Livingstone Mfg. Co. v. Rizzi, 86 Vt. 419, 85 Atl. 912.
[Note 4, at the end; add:]
1905, Aultman T. & E. Co. v. Knoll, 71 Kan. 109, 79 Pac. 1074.
1907, Superior Drill Co. v. Carpenter, 150 Mich. 262, 114 N. W. 67.
1911, Marcus v. Gimbel Bros., 231 Pa. 200, 80 Atl. 75.
[Note 5; add:]
1906, Fifer v. Clearfield & C. C. Co., 103 Md. 1, 62 Atl. 1122 (requiring the evidence of
agency to precede the declarations).
1905, Singer Mfg. Co. v. Christian, 211 Pa. 534, 60 Atl. 1087.
1911, Henderson v. Coleman, 19 Wyo. 183, 115 Pac. 439.
Compare the cases cited post, § 1777.
§ 1079. Co-Conspirators, etc.
[Note 1, par. 1 ; add:]
1913, Crowell v. State, — Ariz. — , 136 Pac. 279 (murder).
1906, Chapline v. State, 77 Ark. 444, 95 S. W. 477 (bribery). 1906, Butt v. State, 81 Ark.
173, 98 S. W. 723.
1905, Johnson v. People, 33 Colo. 224, 80 Pac. 133 (abortion; the woman a co-conspirator).
1905, Rawlins v. State, 124 Ga. 31, 52 S. E. 1.
1904, Miller v. John, 208 111. 173, 70 N. E. 27.
1904, Graff v. People, 208 id. 312, 70 N. E. 299.
1905, Knox v. State, 164 Ind. 226, 73 N. E. 255. 1907, Sanderson v. State, 169 Ind. 301, 82
N. E. 525 (murder). 1910, Baker v. State, 174 Ind. 708, 92 N. E. 14. 1911, Malone v.
State, 176 Ind. 338, 96 N. E. 1.
1904, State v. Walker, 124 la. 414, 100 N. W. 354. 1906, State v. Brown, 130 la. 57, 106
N. W. 379 (instigator of a crime). 1907, State v. Crofford, 133 la. 478, 110 N. W. 921
(murder). 1910, State v. Manning, 149 la. 205, 128 N. W. 345. 1911, State v. Gilmore,
151 la. 618, 132 N. W. 53 (abortion).
1907, Com. V. Hargis, 124 Ky. 356, 99 S. W. 348.
1911, Higgins v. Com., 142 Ky. 647, 134 S. W. 1135 (murder).
1906, Lawrence v. State, 103 Md. 17, 63 Atl. 96 (conspiracy to defraud).
1911, Com. V. Stuart, 207 Mass. 563, 93 N. E. 825.
1904, State v. Boatright, 182 Mo. 33, 81 S. W. 450. 1906, State v. Ruck, 194 Mo. 416, 92
S. W. 706 (the co-conspirator need not be a party to the record). 1906, State v. Darling,
199 Mo. 168, 97 S. W. 592. 1906, State d.. Forshee, 199 Mo. 142, 97 S. W. 933.
1908, State v. Merchants' Bank, 81 Nebr. 704, 116 N. W. 667 (fraud on creditors).
1906, Terr. v. Neatherlin, 13 N. M. 491, 85 Pac. 1044. •
1912, People v. Storrs, 207 N. Y. 147, 100 N. E. 730 (forgery).
1909, Sturgis v. State, 2 Okl. Cr. 362, 102 Pac. 57 (liquor-seUing).
1905, State v. Ryan, 47 Or. 338, 82 Pac. 703 (larceny). 1906, State v. White, 48 Or. 416,
87 Pac. 137.
1905, Smith v. State, 48 Tex. Cr. 233, 89 S. W. 817 (reviewing prior cases). 1908, Richards
V. State, 53 Tex. Cr. 400, 110 S. W. 432 (whether the declarations of one already acquitted
are admissible).
1903, State v. Dix, 33 Wash. 405, 74 Pac. 570 (embezzlement).
243
§ 1079 TESTIMONIAL EVIDENCE
[Note 1 — continued]
1906. State v. Dilley, 44 Wash. 207, 87 Pac. 133 (robbery). 1912, State v. Wappenstein,
67 Wash. 502, 121 Pac. 984 (bribery).
1905, Schutz V. State, 125 Wis. 452, 104 N. W. 90 (bribery).
1905, Sprinkle v. U. S., 141 Fed. 811, C. C. A. (revenue frauds). 1905, Brown v. U. S.,
142 Fed. 1, C. C, A. (misappropriation of bank funds). 1909, Doyle v. U. S., 6th C. C. A.,
169 Fed. 625. 1909, West Pub. Co. v. Edward Thompson Co., C. C. E. D. N. Y., 169 Fed.
833, 863 (digest and cyclopedia). 1910, Jones v. U. S., 9th C. C. A., 179 Fed. 584, 601
(fraudulent acquisition of public lands). 1912, Keliher v. U. S., C. C. A., 193 Fed. 8 (em-
bezzlement).
1909, Miller v. State, 139 Wis. 57, 119 N. W. 850. 1911, Tarasinski v. State, 146 Wis. 508,
131 N. W. 889 (murder).
[Note 2; add:]
1904, R. V. Hutchinson, 11 Br. C. 24, 33 (good opinion, by Hunter, C. J.).
1904, People v. DonnoUy, 143 Cal. 394, 77 Pac. 177.
1873, Solander v. People, 2 Colo. 48, 64.
1904, Lorenz v. U. S., 24 D. C. App. 337, 373.
1907, Cook V. State, 169 Ind. 430, 82 N. E. 1047.
1904, State v. Walker, 124 la. 414, 100 N. W. 354 (good opinion, by McClain, J.).
1911, State V. Fields, 234 Mo. 615, 138 S. W. 518. .
1904, Wells V. Terr., 14 Okl. 436, 78 Pac. 124.
1911, Thompson v. State, 6 Okl. Cr. 50, 117 Pac. 216.
1912, State v. Wappenstein, 67 Wash. 502, 121 Pac. 989.
[Note 4:; add:]
1905, State v. Mann, 39 Wash. 144, 81 Pac. 561.
Contra: 1912, State v. Beebe, 66 Wash. 463, 120 Pac. 122 (distinguishing State v. Mann.
but certainly unsound in result).
§ 1081. Decedent, Insured, Co-Legatee, etc.
1905, O'Brien v. Knotts, 165 Ind. 308, 75 N. E. 582 (indebtedness of an estate).
[Note 2, 1.4; add:]
1906, Cross v. Her, 103 Md. 592, 64 Atl. 33 (husband's admissions, in an action by his
widow against the administratrix).
1905, Benson v. Raymond, 142 Mich. 357, 105 N. W. 870 (declarations of grantee of a
deed, as to grantor's insanity, received against the grantee's heirs).
1903, Dixon v. Union Ironworks, 90 Minn. 492, 97 N. W. 375 (wife-administratrix' action
for death of husband).
Compare the rule for statements of facta against interest (post, § 1461, n. 1).
[Note 3; add:]
1906, Jacksonville El. Co. v. Sloan, 52 Fla. 257, 42 So. 516 (action by a widow, in her own
right, for the death of her husband).
[Text, p. 1287, par. (1), 1. 3 from below :]
Omit the sentence beginning, " The distinction sometimes taken."
[Note 6; add:]
These cases, with the others on the subject, are exhaustively analyzed and the correct
theory lucidly expounded in an article by Professor A. M. Kales, "Declarations of the
Insured against the Beneficiary," 6 Columbia Law Rev. 509 (1906).
244
IMPEACHMENT; ADMISSIONS § 1081
[Note 6 — continued]
Add the following cases : 1913, Logia Suprema v. Aguirre, 14 Ariz. 390, 129 Pac. 503-
1907, Taylor v. Grand Lodge, 101 Minn. 72, 111 N. W. 919. 1906, Hews v. Equitable L.
A. Soc'y, 143 Fed. 850, C. C. A.
[Text, par. (1), at the end ; add a new note 6a :]
'" For the question whether an insurer's admissions, as the real plaintiff in an action for
loss by fire, are receivable, see a careful opinion by Gray, J., in Judd v. N. Y. & T. S. S.
Co., 128 Fed. 7, 62 C. C. A. 515 (1904) :
[Note 9; add:]
Nor of a prior mortgagee : 1903, Lang v. Metzger, 206 111. 475, 69 N. E. 493 (a first mortgagee's
admissions, not received against a second mortgagee).
[Note 11; add:]
1848, Roberts v. Thawick, 13 Ala. 68, 80 (mental incapacity).
1906, Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695 (mental incapacity). 1908, Dolbeer's
Estate, 153 Cal. 652, 96 Pac. 266. 1910, Snowball's Estate, 157 Cal. 301, 107 Pa*. 598.
1889, Dale's Appeal, 57 Conn. 127, 140, 17 Atl. 757 (undue influence).
1906, Robinson v. Duvall, 27 D. C. App. 535, 548 (caveatee's admissions of testator's san-
ity, excluded, except to contradict him as a witness).
1891, Campbell v. Campbell, 138 111. 612, 615, 28 N. E. 1080 (undue influence). 1912,
Cunniff v. Cunniff, 255 111. 407, 99 N. E. 654 (excluding statements of undue influence made
by one devisee ; citing Campbell v. Campbell, 138 lU. 612, but not Egbers v. Egbers, infra,
n. 12).
1879, Hayes v. Burkam, 67 Ind. 359, 363 (mental incapacity). 1913, Sanger v. Bacon, —
Ind. — , 101 N. E. 1001 (excluded ; but noting that such statements may be admissible
as self-contradictions).
1879, Ames' Will, 51 la. 596, 602, 2 N. W. 408 (undue influence).
1905, Fothergill v. Fothergill, 129 la. 93, 105 N. W. 377. 1912, Lawless v. Lawless, — la.
— , 135 N. W. 560.
1906, Kelly v. Kelly, 103 Md. 548, 63 Atl. 1082 (admissions of the testator's insane conduct,
made before his death, by K., the executor and sale devisee, excluded ; this is an absurditas
absurditatum).
1804, Phelps V. Hartwell, 1 Mass. 71 (mental capacity ; but see Atkins v. Sanger, 1822, 1
Pick. 192, semlle, corUra). 1891, McConnell ». Wildes, 153 Mass. 487, 26 N. E. 114 (undue
influence). 1908, Gorham v. Moor, 197 Mass. 522, 84 N. E. 436 (but here admitted as
self-contradictions to impeach). 1913, Aldrich v. Aldrich, 215 Mass. 164, 102 N. E. 487
(silence of a beneficiary of a will is not to be taken as an admission).
1893, O'Connor v. Madison, 98, Mich. 183, 190, 57 N. W. 105 (undue influence). 1904,
Roberts v. Bidwell, 136 Mich. 191, 98 N. W. 1000.
1855, Prewett v. Coopwood, 30 Miss. 369, 388 (pecuniary claim).
1905, King v. Gilson, 191 Mo. 307, 90 S. W. 367. 1906, Meier v. Buchter, 197 Mo. 68,
94 S. W. 883 (rule in Schierbaum v. Schemme, supra, not applied, where the devisees
were charged as co-conspirators to defraud). 1907, Seibert v. Hatcher, 205 Mo. 83, 102
S. W. 962 (Schierbaum v. Schemme followed).
1888, Carpenter v. Hatch, 64 N. H. 573, 15 Atl. 219 (mental incapacity).
1907, Myers v. Myers, 75 N. J. L. 610, 68 Atl. 82.
1906, Myer's Will, 184 N. Y. 54, 76 N. E. 920 (admissions of the principal legatee as to tes-
tatrix' incapacity, excluded).
1906, Linebarger v. Linebarger, 143 N. C. 229, 55 S. E. 709 {sembh, not decided in general,
but here excluded).
1862, Thompson v. Thompson, 13 Oh. St. 356 (mental capacity).
245
§1081 IMPEACHMENT; ADMISSIONS
[Note 11 — continued]
1825, Nussear v. Arnold, 13 S. & R. 323.
1851, Mullins v. Lyles, 1 Swan 337 (fraud and undue influence).
1889, Ormsby v. Webb, 134 U. S. 47, 65, 10 Sup. 478 (excluded, except to contradict as a
witness, where the declarant was not sole legatee).
1913, In re Thompson, N. J. D., 205 Fed. 558 (bankrupt).
1899, Whitelaw v. Whitelaw, 96 Va. 712, 32 S. E. 358 (mental incapacity).
1871, Forney v. Ferrell, 4 W. Va. 729, 739 (undue influence).
Undecided: 1905, Arnold's Estate, 147 Cal. 583, 82 Pac. 252.
[Note 12; add:]
1904, Powers' Ex'r v. Powers, — Ky. — , 78 S.'W. 152 (devisee's admissions).
1910, McQonnell's Ex'r v. McConnell, 138 Ky. 783, 129 S. W. 106.
1914, Scott V. Townsend, — Tex. — , 166 S. W. 1138 (second wife and her child as
devisees).
1906, MiUer's Estate, 31 Utah 415, 88 Pac. 338 (sole legatee's admissions, received).
[Note 13; add:]
For the same reason, an executor's admissions should be receivable : CorUra: 1911, Fowler's
Will, 156 N. C. 340, 72 S. E. 357 (undue influence).
§ 1082. Grantor, etc. ; Admissions before Transfer.
[Note 1 ; add :]
1908, Kitchell v. Hodgen, 78 Kan. 551, 97 Pac. 369 (sale of realty).
1910, Abbott V. Walker, 204 Mass. 71, 90 N. E. 405 (but here the Court erroneously states
limitation of § 1567, post, i. e. that the declarations were made while on land).
1911, Northrup «. Columbian Lumber Co., C. C. A., 186 Fed. 770 (received, where made
before title transferred).
1905, Stewart v. Doak Bros., 58 W. Va. 172, 52 S. E. 95 (boundaries).
[Note 2; add:]
1911, Washoe Copper Co. v. Junila, 43 Mont. 178, 115 Pac. 917 (title not shown at
all).
§ 1083. Same : Personalty, etc.
[Note 4:; add:]
1905, Conkling v. Weatherwax, 181 N. Y. 258, 73 N. E. 1028 (Foote v. Beecher, Merkle
V. Beidleman, supra, approved, obiter).
1912, People v. Storrs, 207 N. Y. 147, 100 N. E. 730 (forgery by a wife of a marriage settle-
ment, dated Aug. 21, 1909, by the husband, reciting the gift of an automobile, etc., to her ;
the deceased husband's declarations, made at some time in the summer of 1909, that he
had so given the automobile, held admissible for the defence, on the theory that the Paige
V. Cagwin is subject to an exception allowing a deceased owner's disclaimers to be used against
his representative in defence to a claim of title ; but this is hardly an exception, as the rule
of Paige V. Cagwin was expressly limited to purchasers for value).
§ 1084. Same : Negotiable Instruments.
[Note 2; add:]
1911, Smith V. Goethe, 159 Cal. 628, 115 Pac. 223 (admissions by holders of notes as against
subsequent holders taking after maturity, received).
246
IMPEACHMENT; ADMISSIONS §1107
§ 1085. Admissions after Transfer ; in general.
[Note 1; add:]
1903, Lang v. Metzger, 206 111. 475, 69 N. E. 493.
1906, Jones v. Tennis C. Co., — Ky. — , 94 S. W. 6.
1905, Conkling v. Weatherwax, 181 N. Y. 258, 73 N. E..1028 (a mortgagor, who was also
executor ; his admissions, made after execution of the mortgage, that the legacies had not
been paid, not admitted against the mortgagee).
1905, Leonard v. Fleming, 13 N. D. 629, 102 N. W. 308.
1909, Gowdy v. Gowdy, 83 S. C. 349, 65 S. E. 385 (by a mortgagee after sale).
1905, West V. Houston Oil Co., 136 Fed. 343, 348, 69 C. C. A. 169 (land).
§ 1086. Same : Transfers in Fraud of Creditors.
[NoU2; add:]
1904, Urdangen v. Doner, 122 la. 533, 98 N. W. 317 (Bixby v. Carskaddon followed).
1905, Hart v. Brierley, 189 Mass. 598, 76 N. E. 286 (personalty; excluded).
1906, Borden v. Lynch, 34 Mont. 503, 87 Pac. 609 (debtor's declarations of fraud, prior
to the plaintiff's mortgage, held admissible against him, but here excluded for lack of evi-
dence of his knowledge of the fraud).
1904, Woods V. Faurot, 14 Okl. 171,77 Pac. 346 (attachment of H.'s goods, F. claiming by
prior sale from H. ; H.'s declarations of claim to the sheriff, not admitted for the creditor ;
no authority cited).
1903, Walker v. Harold, 44 Or. 205, 74 Pac. 705 (vendor's declarations after deed, executed,
admitted, after evidence of a "prior dishonest combination").
1906, Mower v. McCarthy, 79 Vt. 142, 64 Atl. 578 (defendant loaned money to his son to
buy a stock of goods and took a mortgage; the son's declarations of intent to defraud
creditors, not admitted against the father, except on evidence of a conspiracy).
[Note 3; add:]
Accord: 1906, Mower v. McCarthy, 79 Vt. 142, 64 Atl. 578.
Contra: 1903, Lumm v. Howells, 27 Utah 80, 74 Pac. 432 (no authority cited).
§ 1105. Good Character, after Evidence of General Character.
[Note 1; add:]
For the rebuttal of testimony to the unchaste character of the prosecutrix in seduction, see
post, § 1620.
§ 1106. Same : After Evidence of Particular Instances, etc.
[Note 2; add:]
1909, Shields v. Conway, 133 Ky. 35, 117 S. W. 340 (good opinion, by Carroll, J.).
1913, Kovacs v. Mayoras, 175 Mich. 582, 141 N. W. 662 (Hitchcock a. Moore followed).
1912, State v. Dipley, 242 Mo. 461, 147 S. W. Ill (allowed, after evidence of prize-fighting
and assault). 1912, State v. Lovitt, 243 Mo. 510, 147 S. W. 484 (allowed, after evidence
of unchaste conduct by a prosecutrix in rape).
1907, First National Bank v. Blakeman, 19 Okl. 106, 91 Pac. 868 (admissible; leading case,
with careful opinion by Burford, C. J.).
§ 1107. Same: After Evidence of Bias, etc.
[Note 2; add:]
1907, First National Bank v. Blakeman, 19 Okl. 106, 91 Pac. 868 (admissible ; careful
opinion by Burford, C. J.).
247
§1108 IMPEACHMENT; ADMISSIONS
§ 1108. Good Character, after Evidence of Self-Contradiction.
[Note 1; add:]
1904, Brown v. State, 142 Ala. 287, 38 So. 268 (same).
1907, State v. Hoffman, 134 la. 587, 112 N. W. 103 (excluded).
1903, Runnels v. State, 45 Tex. Cr. 446, 77 S. W. 458 (admitted).
§ 1109. Same : After Contradiction by Other Witnesses.
[Note 1; add:]
1908, Title Ins. & Trust Co. v. Ingersoll, 153 Cal. 1, 94 Pac. 94 (accounting as trustee ;
defendant's good character of the defendant-witness not admitted where only contradic-
tions of his testimony on minor points had been introduced).
1907, First National Bank v. Blakeman, 19 Okl. 106, 91 Pac. 868 (excluded ; except in
special cases, in the trial Court's discretion).
§ 1111. Discrediting the Impeaching Witness, etc.
[Note 1; add:]
1908, Harms v. Proehl, 104 Minn. 303, 116 N. W. 587 (allowing inquiry, not only to the
names of the persons, but also to their statements).
1909, State v. Osborne, 54 Or. 289, 103 Pac. 62 (rape ; defendant's witness to the woman's
bad repute, not allowed to be cross-examined to his own knowledge of her good behavior ;
the Court mistakenly appUes the rule of § 988, ante, as to a sustaining witness, and ignores
the present rule).
[Note 2; add:]
1884, State «. Woodworth, 65 la. 141, 21 N. W. 490.
1905, Hofacre v. Monticello, 128 la. 239, 103 N. W. 488 (Deemer, J. : "The writer would
be inclined to adopt a contrary rule. . . . But as there seems to be nothing sustaining such
a [contrary] rule save an unsupported remark of Professor W. in his ne^Sr work on Evidence,
§ 1111, it is better, perhaps, to follow the current of authority").
1908, Harms v. Proehl, 104 Minn. 303, 116 N. W. 587.
Contra: 1905, Johnson v.- State, 75 Ark. 427, 88 S. W. 905, semble (cited post, § 1117, n. 6).
1913, Fort Worth Belt R. Co. D.Cabell,— Tex. Civ.App. — , lisi S.W. 1083 (after testimony
to plaintiff's bad repute for truth and honesty, which the witness said was based on plain-
tiff's failure to pay his debts, plaintiff was allowed to explain the facts of his indebted-
ness).
§ 1116. Rehabilitation of Witness; Denial of the Fact, etc.
[Note 4; add:]
1904, People v. Rodawald, 177 N. Y. 408, 70 N. E. 1 (Sims v. Sims approved).
[Note 5; add:]
1904, Gallagher v. People, 211 111. 158, 71 N. E. 842.
§1117. Same: Explaining away the Fact.
[NoU3; add:]
Contra: 1913, O'Brien v. Boston Elevated R. Co., 214 Mass. 277, 101 N. E. 365 ("No
evidence is competent to explain the circumstances of the particular crime" ; but counsel
may argue hypothetically on the principle of § 1807, post).
1912, Smith v. State, 102 Miss. 330, 59 So. 96.
248
REHABILITATION OF WITNESSES § 1126
[Note 4; add:]
1912, Neal v. State, 178 Ind. 154, 98 N. E. 872 (after the witness has on cross-examination
answered negatively to questions about attempts to kill other persons etc., he may not on
re-direct examination explain the actually innocent complexion of the acts referred to in the
questions ; this is theoretically sound, but practically unfair ; though the cross-examiner
cannot prove the facts in contradiction, yet the insinuation is often equally effective (ante,
§ 983, post, § 1808), and the re-examination is the only means of removing its insidious
effect).
1904, McKinstry v. Collins, 76 Vt. 221, 56 Atl. 985 (assault; plaintiff's explanation of his
plea of guilty to a charge of assault on the same occasion, allowed on re-examination).
[NoteQ; add:]
1905, Johnson v. State, 75 Ark. 427,' 88 S. W. 905 (semble, charges brought out by an
impeaching witness to character, may be denied in rebuttal, if no rule of estoppel
applies).
§ 1124. Prior Consistent Statements; Offered in Chief, etc.
[Note 1 ; add :]
1909, Bennett v. State, 160 Ala, 25, 49 So. 296.
1904, Boyd v. State, 84 Miss. 414, 36 So. 625.
1904, Ranck v. Brackbill, 209 Pa. 499, 58 Atl. 884.
1913, State v. Turley, — Vt. — , 88 Atl. 563.
§ 1126. Same : After Impeachment by Inconsistent Statements.
[Note 3; add:]
Sembk, approved in State v. Turley, — Vt. — , 88 Atl. 563.
[Note 4 ; add :]
1906, Burks v. State, 78 Ark. 271, 93 S. W. 983 (similar statements, not admitted, though
the witness denied making the self-contradictory ones ; rule of Cooley, J., in Stewart v.
People, Mich., supra, repudiated).
1874, Georgia R. Co. v. Oaks, 52 Ga. 410, 416 (excluded). 1893, Fussell v. State, 93 id. 450,
456, 21 S. E. 97 (same). 1901, Knight v. State, 114 id. 48, 39 S. E. 928 (same).
1906, Cook V. State, 124 Ga. 653, 63 S. E. 104 (same).
1904, Chicago City R. Co. v. Matthieson, 212 111. 292, 72 N. E. 443 (excluded). 1909,
Reavely v. Harris, 239 111. 526, 88 N. E. 238 (excluded).
1906, Hicks v. State, 165 Ind. 440, 75 N. E. 641 (admitted ; but only such statements as
corroborate the impeached parts, not other parts, of the testimony).
1913, Hopkins v. State, — Ind. — , 102 N. E. 851 (admitted).
Md. St. 1904, c. 661 (preserves this part of the above statute, while amending the rest ;
quoted ante, § 488).
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127.
1904, State v. Sharp, 183 Mo. 715, 82 S. W. 134 (admitted, purporting to follow State v.
Taylor, supra). 1913, State v. Maggard, 250 Mo. 335, 157 S. W. 354 (admitted, following
State V. Sharp).
1908, Driggers v. U. S., 21 Okl. 60, 95 Pac. 612 (excluded).
1906, Cincinnati Traction Co. «. Stephens, 75 Oh. 171, 79 N. E. 235 (excluded, where the
witness admitted the making of the inconsistent statements).
1904, State v. McDaniel, 68 S. C. 304, 47 S. E. 384 (excluded).
1913, State v. Turley, — Vt. — , 88 Atl. 563.
249
§H27 REHABILITATION OF WITNESSES
§ 1127. Same : After Impeachment by Contradiction.
[Note 1; add:]
1905, Maryland Steel Co; v. Engleman, 101 Md. 661, 61 Atl. 314 (this sort of corroboration
is not permitted for parties, under St. 1874, now Pub. G. L. 1904, art. 35, § 3, cited ante,
§ 1126, n. 4).
1906, Inman v. Dudley k D. L. Co., 146 Fed. 449, 456, C. C. A. (excluded).
§ 1128. Same : After Impeachment by Bias, etc.
[Note 1; add:]
1904, Waller v. People, 209 111. 284, 70 N. E. 681.
1913, State v. Maggard, 250 Mo. 335, 157 S. W. 352.
1908, Driggers v. U. S., 21 Okl. 60, 95 Pac. 612 (admissible).
1903, Legere v. State, 111 Tenn. 368, 77 S. W. 1059 (rule conceded, but held not applicable
on the facts).
1906, Welch v. State, 50 Tex. Cr. 28, 95 S. W. 1035 (excluded on the facts).
1906, Anderson v. State, 50 id. 134, 95 S. W. 1037 (excluded on the facts).
1905, State v. Bean, 77 Vt. 384, 70 Atl. 807 (State v. Flint followed).
1913, State v. Turley, — Vt. — ■, 88 Atl. 563 (evidence held here not to be within the rule).
[Note 2; add:]
1906, Green v. State, 49 Tex. Cr. 238, 90 S. W. 1115.
Contra : 1913, People ».Katz, 209 N. Y. 31 1, 103 N. E. 305 (People v. Vane said to be still law) .
§ 1129. Same : After Impeachment as to Recent Contrivance.
[Note 1; add:]
1913, Benjamin's Case, 8 Cr. App. 146 (detective's note-book entry).
1912, People v. Ferrara, 18 Cal. App. 271, 122 Pac. 1089 (identification of accused).
1904, Sweeney v. Sweeney, 121 Ga. 293, 48 S. E. 984.
1911, State V. Louie Moon, 20 Ida. 202, 117 Pac. 757.
1904, Waller v. People, 209 111. 284, 70 N.^ E. 681 (the witness was impeached by certain
former narrations of his omitting an essential fact ; his statement at the time of the occur-
rence, including that fact, was admitted).
1906, Kesselring v. Hummer, 130 la. 145, 106 N. W. 501 (the present exception held not
applicable on the facts).
1907, National Cereal Co. v. Alexander, 75 Kan. 537, 89 Pac. 923 (principle applied).
1909, Lanasa v. State, 109 Md. 602, 71 Atl. 1058 (a statement made to a detective by a
co-indictee 39 days after the crime, excluded).
1904, Com. V. Kelly, 186 Mass. 403, 71 N. E. 807 (here, to rebut an alleged failure of the
witness to identify the accused at the time). 1905, Com. v. Tucker, 189 Mass. 457, 76 N. E.
127 (rule recognized). 1910, Webb G. & C. Co. v. Boston & M. R. Co., 206 Mass. 572, 92
N. E. 717 (the trial Court's discretion to control).
1913, People v. Katz, 209 N. Y. 311, 103 N. E. 305 (accomplice testifying under promise of
immunity ; his statement written down shortly after arrest and a year before the promise,
admitted).
1908, Driggers v. U. S., 21 Okl. 60, 95 Pac. 612 (admissible).
1912, Lyke v. Lehigh Valley R. Co., 236 Pa. 38, 84 Atl. 595 (rule not clearly stated).
1907, McClellan's Estate, 21 S. D. 209, 111 N. W. 540 (prior consistent statements, admitted
to explain away the suggestion of recent fabrication ; former opinion modified, as applied to
the evidence here offered).
1911, Jessie v. Com., 112 Va. 887, 71 S. E. 612 (statements by one also accused, made
before the accusation, admitted) .
250
REHABILITATION OF WITNESSES § 1133
§ 1130. Same : Statements Identifying an Accused, etc.
[Note 1 ; add, under Contra :]
1912, Warren v. State, 103 Ark. 165, 146 S. W. 477 (burglary; identification of the de-
fendant by the house-occupant, immediately after arrest, excluded : "Prof. W.'s views on
this subject are not in accord with the weight of authority"; but it is respectfully suggested
that an equally important inquiry would be whether they are in accord with sound principle,
common sense, and universal practice in proof outside of the courtroom).
1909, People v. Lukoszus, 242 111. 101, 89 N. E. 749 (no authority cited).
1904, State v. Egbert, 125 la. 443, 101 N. W. 191.
1914, People v. Jung Hing, — N. Y. — , 106 N. E. 105 (identification at the police sta-
tion just after arrest, to corroborate the witness' identification on the stand, excluded ;
it is really astonishing how reluctant modern courts are to accept this bit of common
sense ; the learned judge's reference to the above text pays it an undeserved compliment ;
because the above text has unfortunately failed to express itself as intended, to the learned
reader ; the text means to say that a prior act or utterance of identification by a now
witness is, or ought to be, admissible in chief, whenever identity is in dispute, without any
conditions whatever as to impeachment on the ground of recent contrivance or any other
ground).
1906, Turman v. State, — Tex. Cr. — , 95 S. W. 533 (rape ; approving Murphy v. State, and
prior cases ; here the prosecutrix testified that as soon as she had identified the accused in
the presence of the sheriff, and upon a further question by him, she fainted ; the fainting was
held improperly proved, as it "was calculated to greatly imperil and jeopardize the de-
fendant's rights" ; such a maudlin rule defies reason).
1908, Gillotti V. State, 135 Wis. 634, 116 N. W. 252 (a person robbed testified on cross-exam-
ination that he had shortly thereafter described the robbers to the sheriff ; the sheriff's
testimony to that description was excluded ; Marshall, J., diss., in a careful opinion).
§ 1131. Same: After Cross-Examination, etc.
[Note 1 ; add :]
1913, Cross V. State, 118 Md. 660, 86 Atl. 223 (Cooke v. Curtis followed).
1904, State v. Sharp, 183 Mo. 715, 82 S. W. 134 (State v. Taylor approved).
1905, State v. Exum, 138 N. C. 599, 50 S. E. 283 (why does the Court devote two pages
discussing this rule, after it has been so long settled in this State?).
1912, AUred v. Kirkman, 160 N. C. 392, 76 S. E. 244.
The following case is unique :
1914, People v. Jung Hing, — N. Y. — , 106 N. E. 105 (besides the impeachment of the
witness, it must be shown that the corroborating statements themselves " were made
under circumstances which precluded the probability of their being inspired by others " ;
no authority is cited ; the limitation is needless and unsound, and appears never to have
been thought of by any other court).
§ 1133. statements of Claim by a Party, etc.
[Note 1 ; add :]
1903, Rulofson v. Billings, 140 Cal. 452, 74 Pac. 35 (action on a contract by defendant's
testator to adopt and support the plaintiff ; after admitting for the plaintiff declarations by
the testator that plaintiff was his son, the Court excluded for the defendant declarations of
the testator that he was only guardian; the present principle not noticed).
1906, McBride B. Georgia R. & E. Co., 125 Ga. 515, 54 S. E. 674 (with possible exceptions;
here in an action for personal injuries).
1908, Louisville & N. R. Co. v. Varner, 129 Ga. 844, 60 S. E. 162 (personal injury ; excluded).
1912, Gordon v. Munn, 87 Kan. 624, 125 Pac. 1 (ante-nuptial contract; the widow having
251
§ 1133 REHABILITATION OF WITNESSES
[Note 1 — continued]
offered the deceased husband's statements that it was destroyed by mutual consent, the
heir was allowed to offer other declarations of the deceased that the contract was lost and
not destroyed).
1904, Bernard v. Pittsburg Coal Co., 137 Mich. 279, 100 N. W. 396 (the original unamended
declaration of the plaintiff having been offered as an admission, his letter to his counsel
stating the fact as now claimed was received).
§ 1135. Rape Complaint; First Theory, etc.
[Note 1, 1. 3; add:]
Accord: 1912, Kramer v. Weigand, 91 Nebr. 47, 135 N. W. 230 (civil action for rape).
Contra : 1898, R. v. Kiddle, 19 Cox Cr. 77 (indecent assault on a child of six).
1905, R. V. Osborne, 1 K. B. 551 (indecent assault on a child of twelve; "such complaints
are admissible, not merely as negativing consent, but because they are consistent with the
story of the prosecutrix").
1905, State v. Oswalt, — Kan. — , 82 Pac. 513 (said to be "at least doubtful").
Yet in California it is inconsistently held that the fact of complaint is on such a charge
admissible : 1907, People v. Gonzalez, 6 Cal. App. 256, 91 Pac. 1013.
[Note 1, 1. 5; after "sodomy," add:]
1908, Soto V. Terr., 12 Ariz. 36, 94 Pac. 1104 (sodomy upon a child of four).
Contra: 1908, State v. Sebastian, 81 Conn. 1, 69 Atl. 1054.
[Note 1,1. 6; add:]
Whether on a charge of indecent liberties seems doubtful : 1909, People v. Scattura, 238
111. 31^, 87 N. E. 332 (excluded).
[Note 2, col. 2,1. 14; add:]
1905, State v. Willett, 78 Vt. 157, 62 Atl. 48.
The only contrary ruling is based on inattention to the different theories : 1911, People v.
Lewis, 252 111. 281, 96 N. E. 1005 (the fact of fresh complaint by the woman, excluded,
because she had not testified, being dead before the trial).
[Note 1, col. 2, par. 1, 1. 5 from the end; add:]
1912, Totten v. Totten, 172 Mich. 565, 138 N. W. 257 (civil'action for rape).
1906, State v. Winslow, 30 Utah 403, 85 Pac. 433 (incest with a minor daughter, there being
no consenting fact).
[Note 3; add:]
1904, State v. Icenbice, 126 la. 16, 101 N. W. 273.
[Note 4; add:]
1906, State v. GriflSn, 43 Wash. 591, 86 Pac. 951 (complaint six months afterwards, excluded,
on the facts). S
1907, People v. Gonzalez, 6 Cal. App. 255, 91 Pac. 1013 (time is material).
[Note 5,1. 3; add:]
1908, State v. Sebastian, 81 Conn. 1, 69 Atl. 1054.
1904, State v. Bebb, 125 la. 494, 101 N. W. 189. 1910, Smith v. Hendrix, 149 la. 255, 128
N. W. 360.
1911, Conger v. State, 63 Tex. Cr. 312, 140 S. W. 1112.
1909, State u. Williams, 36 Utah 273, 103 Pac. 250 (complaint made nearly three years later,
admitted ; but the delay may affect its weight).
252
REHABILITATION OF WITNESSES § 1138
[Note 5, at the end ; cM :]
The total failure to complain is of course not fatal per se to the prosecution :
1906, Garvik ». Burlington, C. R. & N. R. Co., 131 la. 415, 108 N. W. 327.
§ 1136. Same : Consequences of this Theory, etc.
[Note 1; add:]
1905, Posey v. State, 143 Ala. 54, 38 So. 1019.
1904, People v. Scalamiero, 143 Cal. 343, 76 Pac. 1098.
1910, Huey v. State, 7 Ga. App. 398, 66 S. E. 1023 (Stephen v. State followed).
1904, State v. Harness, 10 Ida. 18, 76 Pac. 788.
1908, People ». Weston, 236 111. 104, 86 N. E. 188.
1910, Pulley v. State, 174 Ind. 542, 92 N. E. 550 (the name of the alleged assailant must not
be mentioned). '
1905, State v. Andrews, 130 la. 609, 105 N. W. 215 (the precise scope of the "fact" of the
complaint here seems to be enlarged to include "who her assailant was and what he did to
her," with fittther qualifications ; the rule is now loose and unsettled in this State ; see § 1761,
post).
1905, State v. Barkley, 129 la. 484, 105 N. W. 506 (the rule further obscured; preceding
case not cited). 1910, State v. Dudley, 147 la. 645, 126 N. W. 812. 1911, State v. Novak,
151 la. 536, 132 N. W. 26 (preceding rule applied ; but pointing out that details not receiv-
able under the present principle may be admissible under the Spontaneous Declarations
exception to the Hearsay rule, pod, §§ 1139, 1760).
1907, Younger v. State, 80 Nebr. 201, 114 N. W. 170 (here the ruling goes fiu-ther and admits
the naming or describing of the assailant; the foregoing cases are not cited). 1909, Hen-
derson V. State, 85 Nebr. 444, 123 N. W. 459 (unless the complaint was part of the res gestx).
1906, State v. Griffin, 43 Wash. 591, 86 Pac. 951 (statement naming the accused, excluded).
For the admissibility of a child's complaint, compare § 1751, par. c, § 1761, n. 2, post.
[NcAe 2, par. 1 ; add, under England:]
1898, R. ■». Kiddle, 19 Cox Cr. 77, semble, contra (indecent assault ; the prosecutrix being too
young to be sworn, her unsworn testimony was admitted by virtue of St. 1885, quoted post,
§ 1828; an objection to the admission of the complaint, on the ground that "there was no
evidence on oath to be corroborated," was overruled).
1905, R. V. Osborne, 1 K. B. 551, 558, semble, accord (indecent assault ; the opinion appeps
to proceed on this theory; quoted ante, § 1135, n. 1).
[Note 2, par. 1 ; add, under American Courts :]
1910, Huey v. State, 7 Ga. App. 398, 66 S. E. 1023.
§ 1138., Same: Second Theory; Consequences of this Theory.
[Note 2; add:]
1907, State v. Werner, 16 N. D. 83, 112 N. W. 60 (and noting that, on this theory, the
statement need not be " so recently after the commission of the oflfence," as it must be
when admitted on the theory of § 1761, post).
1913, State v. Apley, 25 N. D. 298, 141 N. W. 740 (following State b. Werner).
[Noted; add:]
1910, Gaines v. State; 167 Ala. 70, 52 So. 643 (Oakley v. State approved).
1907, State v. Fowler, 13 Ida. 317, 89 Pac. 757.
1906, State v. Bateman, 198 Mo. 221, 94 S. W. 843.
1913, State v. Lawhom, 250 Mo. 293, 157 S. W. 344 (affirming State v. Jones and State ».
Bateman).
253
§ 1138 AUTOPTIC PROFERENCE
[Note 3 — continued]
1888, State v. Campbell, 20 Nev. 126, 17 Pac. 620 (excluded, unless after impeachment).
1905, Re Kelly, 28 Nev. 491, 83 Pac. 223 (State v. Campbell followed).
1904, State v. Parker, 134 N. C. 209, 46 S. E. 511 (a technical rule laid down as to the judge's
charge).
1907, State v. Werner, 16 N. D. 83, 112 N. W. 60 (but without formally accepting either
specific theory).
§ 1139. Third Theory, etc.
[Text; at the end, add a new paragraph :]
(4) If the prosecutrix is too young to be a witness, nevertheless the state-
ment is receivable.
§ 1141. Complaint in Travail by a Bastard's Mother.
[Note^; add:]
1905, Shailer ji. Bullock, 78 Conn. 65, 61 Atl. 65 (Booth v. Hart approved).
[JVote4; add:]
1908, State v. Sebastian, 81 Conn. 1, 69 Atl. 1054 (rule applied in a prosecution for rape
under age, to admit the woman's statement made at the time of a miscarriage).
Haw. St. 1913, No. 101, p. 142, Apr. 23, § 6 (bastardy; "if upon examination under the
provisions of § 2, and also in the time of her travail, she accuses the same person of being the
father of the child, and continues constant in such accusation, her accusation in time of
travail shall be admissible in evidence upon the trial to corroborate her testimony").
1904, Burns ii. Donoghue, 185 Mass. 71, 69 N. E. 1060 (statute applied).
1904, Baxter v. Gormley, 186 Mass. 168, 71, N. E. 575 (her testimony on the complaint-
hearing suffices).
In Ontario, the action for support of a bastard is not maintainable unless the mother
while pregnant or within six months after birth made affidavit charging the now defendant
as father; but this affidavit is express^ declared not to be "evidence of the fact of the de-
fendant being the father of the child" : Ont. Rev. St. 1897, c. 169, § 4, as re-enacted in St.
1911, 1 Geo. V, c. 169, §§ 2, 3.
[NoU%; add:]
1905, Johnson v. Walker, 86 Miss. 767, 39 So. 49 (declarations of paternity made during
travail are admissible to corroborate ihe mother's testimony apart from the statute cited
supra, n. 5, and even though the mother is alive).
[Note 7, par. 1 ; add :]
1909, Palmer v. State, 165 Ala. 329, 51 So. 358 (excluded; no authority cited).
1904, State v. Lowell, 123 la. 427, 99 N. W. 125 (since a complaint would be inadmissible,
the failure to complain is equally so).
1905, People v. Stison, 140 Mich. 216, 103 N. W. 542 (incest; dying declarations of pater-
nity, made at childbirth, exjcluded).
§ 1142. Owner's Complaint after Robbery or Larceny.
[Note 2; add:]
See an article by W. C. Maude, in 71 Justice of the Peace 411 (1907).
[Note 4 ; add :]
1913, Robinson v. State, 8 Okl. Cr. 667, 130 Pac. 121 (complaint of owner received).
254
AUTOPTIC PROFERENCE § 1154
§ 1151. Real Evidence (Autoptic Preference); General Principle.
[Text, p. 1347, at the end ; add a new note 1 :]
1 Quoted with approval in Moorhead v. Arnold, 73 Kan. 132, 84 Pac. 742 (1906).
§ 1152. Sundry Instances of Production, etc.
[Note 12; add:]
1906, State v. Wallace, 78 Conn. 677, 63 Atl. 448 (photograph of a building, examined with a
magnifying glass).
1906, Cotton V. Boston El. R. Co., 191 Mass. 103, 77 N. E. 698 (damage by eminent domain ;
the trial Court's refusal to allow the jury to look through a microscope at particles of steel col-
lected in the building and emanating from the defendant road, held to be within his discretion) .
§ 1154. Irrelevant Facts, etc.
[Note 2; add:]
Br. C. : St. 1903^, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, § 3 (the judge, jury,
etc., "may infer as a fact the nationality or race of the person in question from the appearance
of such person" ; the foregoing to be § 53 of Rev. St. 1897, c. 71.)
la. : 1911, State v. Nathoo, 152 la. 665, 133 N. W. 129 (rape ; profert of the child, as resem-
bling the Hindoo defendant; not decided).
U. S. : 1904, U. W. v. Hung Chang, 134 Fed. 19, 23, 67 C. C. A. 93 (Chinese descent,
evidenced by the person's appearance; "it is a case of res ipsa loquitur").
[Note 5, par. 1 ; add :]
1913, Watts V. State, 8 Ala. App. 264, 63 So. 18 (seduction; exhibition of child, allowed).
1904, People v. Tibbs, 143 Cal. 100, 76 Pac. 904 (seduction ; child's presence in court held
not improper). 1911, People «. Richardson, 161 Cal. 552, 120 Pac. 20. 1912, People v.
Burke, 18 Cal. App. 72, 122 Pac. 435.
1909, State v. Hunt, 144 la. 257, 122 N. W. 902 (exhibition of a child two months old,
in a seduction trial held improper as evidence by resemblance).
1905, Johnson v. Walker, 86 Miss. 757, 39 So. 49 (not decided).
1904, Esch V. Graue, 72 Nebr. 719, 101 N. W. 978 (mere presence of the child, held not im-
proper on the facts).
1906, State v. Palmberg, 199 Mo. 233, 97 S. W. 566 (rape under age ; child exhibited).
[Note 7, par. 1 ; add :]
Eng. St. 1904, 4 Edw. VII, c. 15, § 17 (offences concerning children; where "the child ap-
pears to the Court to be under that age" alleged, such child shall "be deemed to be under
that age, unless the contrary is proved").
P. E. I. St.l910, c. 15, § 25 (neglected children ; child's appearance as under age is sufficient
as evidence).
1911, Quinn v. People, 51 Colo. 350, 117 Pac. 996 (but, if there is no other evidence, the
jury's attention must be called, by instruction).
1909, Stevenson v. Haynes, 220 Mo. 199, 119 S. W. 346 (defendant's presence before the
jury is some evidence as to his being over 16 years of age).
N. Y. St. 1909, c. 65, p. 22, Feb. 17 (places St. 1883, c. 340, in C. C. P. as § 961o).
[Note 7, par. 2; add:]
and IlUnois.
[Note 7 ; add a new par. :]
For the possible quibble here, under the Opinion rule, see post, § 1974.
255
§ 1154 AUTOPTIC PROFERENCE
[Note 13; add:]
1913, Baltimore & O. R. Co. v. Fouts, — Oh. — , 104 N. E. 544 (negligence of an engineer in
disobeying an arm-signal of the conductor, mistaking the go-ahead signal for the back-up
signal ; the witness' reproduction of the signal before the jury, held improper, the conditions
of light and distance not being the same).
[iVofe 16; add:]
Compare the unreasonable ruling in State v. Landry, 29 Mont. 218, 74 Pac. 418 (1903),
cited post, § 1163, n. 6.
§ 1157. Unfair Prejudice to an Accused Person.
[Text; note to quotation from ScintUlcB Juris:]
This libellus, by Mr. C. J. (later Justice) Darling, published at first anonymously, has
recently gone into its sixth edition.
[NoteS; add:]
1909, Rollings v. State, 160 Ala. 82, 49 So. 329 (murder ; a futile distinction drawn between
the clothing, etc. and the suspenders, etc. of deceased).
1913, Tiner v. State, — Ark. — , 158 S. W. 1087 (exhibiting deceased's clothing).
1905, State v. Powell, 5 Pen. Del. 24, 61 Atl. 966 (photographs of wounds on the deceased,
admitted).
1905, Roberts v. State, 123 Ga. 146, 51 S. E. 374 (curtain-pole as a weapon for killing, shown).
1912, People v. Morris, 254 111. 559, 98 N. E. 975 (clothing of murdered woman shown).
1905, Osburn v. State, 164 Ind. 262, 73 N. E. 601 (knife found on defendant).
1909, State v. Moore, 80 Kan. 232, 102 Pac. 475 (murder ; bloody jacket exhibited ; lead-
ing opinion, by Burch, J).
1910, Catron v. Com., 140 Ky. 61, 130 S. W. 951 (bloody garment of witness, admitted).
1908, State v. Harris, 209 Mo. 423, 108 S. W. 28 (clothes of deceased, showing place of
wounds, admitted).
1905, State v. Laster, 71 N. J. L. 586, 60 Atl. 361 (articles found on accused, exhibited).
1912, State v. Strong, 83 N. J. L. 177, 83 Atl. 506 (neck of the mutilated deceased person,
said to have been strangled, excluded).
1904, People v. Davey, 179 N. Y. 345, 72 N. E. 244 (rape of a child ; asking questions of the
defendant as to similar acts upon other children who are made to stand up for identification
by him, held improper on the facts).
1904, People v. Rimieri, 180 N. Y. 163, 72 N. E. 1002 (murder; the deceased left a widow
and child, andthere was some issue as to whether the deceased when shot was crossing the
street to overtake the child or to seek the defendant ; the widow testified that she was then
pregnant with another child, and the living child was brought into court and shown ; these
facts were held to be hardly called for, but the error if any "entirely harmless" ; this ruling,
and People v. Davey, supra, are further commented on ante, § 21, n. 15).
1908, Reed v. Terr., 1 Okl. Cr. 481, 98 Pac. 583 (liquor offence ; the whiskey bottle inspected
and smelt by the jury).
1910, Saunders v. State, 4 Okl. Cr. 264, 111 Pac. 965 (deceased's coats and gloves, exhibited).
1911, Morris ». State, 6 Okl. Cr. 29, 115 Pac. 1030 (photographs of wounds on body, ad-
mitted).
1910, State v. Jacobs, 26 S. D. 183, 128 N. W. 162 (revolver-experiments, to prove an im-
material fact, held improper, on the present ground).
1903, State v. Miller, 43 Or. 325, 74 Pac. 658 (photographs of gunshot wounds on the de-
ceased, excluded as "gruesome" and unnecessary ; unsound on the facts).
1904, Melton v. State, 47 Tex. Cr. 451, 83 S. W. 822 (deceased's bloody garments, held im-
properly exhibited by his wife, there being no controversy as to that part of the case).
256
AUTOPTIC PROFERENCE § 1159
[Note 3 — continued]
1909, State v. Roby, 83 Vt. 121, 74 Atl. 638 (assault, by throwing iron etc. at the complain-
ant's house ; the articles of iron, etc., held not improperly exhibited ; approving the above
principle).
1905, RoszczjTiiala v. State, 125 Wis. 414, 104 N. W. 113 (rape ; accused's shirt and trousers,
admitted).
Compare also the cases cited ante, § 789, n. 3, as to dramatic modes of testifying so as to
excite undue prejudice. ■"•
§ 1158. Unfair Prejudice to a Civil Defendant, etc.
[Note 2; add:]
1905, Anderson v. Seropian, 147 Cal. 201, 81 Pac. 521 (amputated hand preserved in liquid
admitted).
1905, Chicago & A. R. Co. v. Walker, 217 111. 605, 75 N. E. 520 (injured ankle).
1906, Pittsburgh C. C. & St. L. R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033 (injured
foot exhibited).
1907, Ford v. Providence C. Co., 124 Ky. 517, 99 S. W. 609 (plaintiff's amputated leg).
1909, Farrell v. Haze, 157 Mich. 374, 122 N. W. 197 (amputated bones, not allowed on the
facts to be shown).
1907, Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45 (injured arm, exhibited, to illustrate the
expert testimony).
1904, Chicago B. & Q. R. Co. v. Krayenbuhl, 70 Nebr. 766, 98 N. W. 44 (maimed leg ex-
hibited, even though the defendant did not deny the injury).
1904, Minden v. Vedene, 72 Nebr. 657, 101 N. W. 330 (personal injury; the lame plain-
tiff's act of walking to the witness-stand, held not objectionable). W04, Felsch v. Babb,
72 Nebr. 736, 101 N. W. 1011 (plaintiff's exhibition and movements of arm and legs,
allowed).
1909, Lapointe v. Berlin Mills Co., 75 N. H. 294, 73 Atl. 406 (here refused, because not
offered in season). ,
1909, Ewing v. Lanark Fuel Co., 65 W. Va. 726, 65 S. E. 200 (injured limb exhibited).
§ 1159. Indecency, or other Impropriety, etc.
[Note 2; add:]
1904, Garvik v. Burlington C. R. & N. R. Co., 124 la. 691, 100 N. W. 498 (action for rape by
D., an employee of the defendant ; the trial Court permitted the jury to inspect the private
parts of D., with his consent, in a separate room, on an allegation that the parts were defec-
tive ; held improper, first, because it was not shown that the man's condition was the same
as at the time alleged, and secondly, because it was a "shocking and indecent performance."
As to the latter reason, such false judicial moraUty is so odd as to be incredible in these
days; why was it "indecent" for the jury, but not for the experts, who made a similar,
examination ? The Court declares that it found no authority for such examination, and
"doubts if there is any to be found in the books" I It is regrettable for modern justice not
only that Sir Matthew Hale, in the instance above cited, should have shown more good
sense two centuries ago than we now possess, but that his celebrated example should even
have become buried in oblivion from some of his learned successors).
1907, State v. Stevens, 133 la. 684, 110 N. W. 1037 (rape; the defendant's request to have
the jury examine his parts in a private room was denied ; following Garvik v. R. Co. ; this
is another perverse ruling).
[Notei; add:]
1905, State v. Schmidt, 71 Kan. 862, 80 Pac. 948 (liquor sales; handing labelled bottles to
the jury, held not improper on the facts).
257
§ 1159 AUTOPTIC PROFERENCE
[Note 4 — continued]
1905, State v. Olson, 95 Minn. 104, 103 N. W. 727 (liquor offence ; jurors allowed to take the
sample as an exhibit, without tasting).
[Note 5; add:]
1905, Benson v. Raymond, 142 Mich. 357, 105 N. W. 870 (bill by a grantor to set aside his
deed for mental incompetency ; the Court held it proper to bring the complainant in court,
"and afford the judge an opportunity of seeing him, and, if he desired, of questioning him").
§ 1160. Incapacity of the Jury, etc.
[Nate 1; add:]
1905, Spires v. Stale, 50 Fla. 121, 39 So. 181 (experiment with a gun in the jury-room, re-
fused in discretion ; see the citation ante, § 460, n. 1).
1895, Moore v. R. Co., 93 la. 484, 61 N. W. 992 (colUsion on a railroad track ; the jury having
been taken to view the place, and an engine having been run over the track in their sight to
illustrate the occxu-rence, this very sensible proceeding was held fatally improper). 1907,
Chicago Telephone S. Co. v. Marne & E. T. Co., 134 la. 252, 111 N. W. 935 (sale of tele-
phones ; tests of the instruments in the jury's presence, held not improperly refused in the
trial Court's discretion).
1907, Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45 (paralysis evidenced by the medical
witness sticking a needle into the plaintiff's hand).
1906, Train, " The Prisoner at the Bar," 312 (N. Y. ; a striking experiment in testing
poisons was performed before the jiu:y).
§ 1161. Physical or Mechanical Inconvenience, etc.
[Note 1; add:]
1907, District of Columbia v. Duryee, 29 D. C. App. 327 (injury at a hitching-post; the post
was dug up and exhibited at the trial).
[Note 1 ; at the end, add :]
and ante, §§ 451-460.
§ 1163. View by Jury; (2) View allowable upon any Issue, etc.
[Note 3, par. 1 ; add:]
1904, Terr. v. Watanabe, 16 Haw. 196, 220 ("It has been the practice" to allow it ; question
left undecided).
1913, People v. Auerbach, — Mich. — , 141 N. W. 869 (murder ; view of premises allowed,
under Comp. L. § 11952).
[Note 6; add:]
1904, O'Berry v: State, 47 Fla. 75, 36 So. 440 (larceny of cattle; under Rev. St. 1892,
§§ 1087, 2918, a view of the cattle was held proper).
1913, Adamson v. Harper, — la. — , 143 N. W. 844 (ownership of cattle ; view held not
improperly refused in trial Court's discretion).
1913, South Covington & C. St. R. Co. v. Finan's Adm'x, 153 Ky. 340, 155 S. W. 742
(jury's inspection of broken car-wheels out of court, held proper).
Contra: 1912, Peterson v. Lott, 11 Ga. App. 536, 75 S. E. 834 (mule levied by attachment;
jury's view of the mule, refused, for lack of judicial power ; one would think that Courts
would not treat themselves like infants, insisting on being fed with a legislative spoon;
even Lord Eldon was less conservative).
258
VIEW BY JURY § 1164
[Note 6 — contimied]
1903, State v. Landry, 29 Mont. 218, 74 Pac. 418 (larceny of a mare ; the jury went to view
another mare claimed by the defendant to be the mother of the one in controversy ; the
mare claimed by the pi;osecuting witness to be the mother was also present, and the behavior
of the mare in controversy ' ' indicated a preference " for the latter ; the Court held the view
of the horses improper, going upon the narrow wording of P. C. § 2097, cited infra, n. 6,
and citing no other authority on this point ; although the behavior in question was plainly
evidential on the principle of §§ 167, 177, 1154, ante, and the defendant himself had
requested the view ; this ruling, when compared with Lord Eldon's celebrated experiment,
quoted ante, § 1154, seems to discountenance the optimistic belief that the world grows
wiser as it grows older, and that the judges of a new community are less encased than others
in narrow formaUsm).
.afRuIesof '
[Note 7; add:]
Newf . St. 1904, c. afldres of Court, 46, par. 4-6 (like Eng. Rules of 1883, Ord. 50, RR.
3-5).
[Note 8; add:]
1903, McMillen v. Ferrum M. Co., 32 Colo. 38, 74 Pac. 461 (statute held not to make a view-
order obligatory where the applicant had not other sufficient evidence to go to the jury).
Ind. St. 1905, p. 684, § 264 (re-enacts the foregoing statute).
Mont. St. 1907, c. 113, p. 285, Mar. 6 (amending P. C. § 2097; after "occurred," inserting
"or in cases involving the brand or mark or identity of live stock or other personal property,"
with other clauses suitable to this amendment; this amendment apparently was designed
merely to cure cases like State v. Landry, n. 6, supra; but why was not the Legislature
courageous enough to give really unlimited powers, as in the English and Canadian
statutes?).
§ 1164. Same : (3) View allowable in Trial Court's Discretion.
[Note I; add:] j
1909, Louisville & N. R. Co. v. Wilson, 162 Ala. 588, 50 So. 188 (machine). '
1909, Jones v. Royster Guano Co., — Ga. — , 65 S. E. 361 (nuisance).
1906, Mier v. Phillips F. Co., 130 la. 570, 107 N. W. 621 (action for coal mined by the de-
fendant under the plaintiff's land ; view held properly refused ; this ruling seems absurdly
pedantic ; the evidence was in conflict ; is it an enlightened rule of law that forbids the jury
to take the common-sense method of getting at the truth?).
1898, Henderson & C. G. R. Co. v. Cosby, 103 Ky. 184, 44 S. W. 639 (discretion). 1904,
Green's Adm'r v. Maysville & B. S. R. Co., — Ky. — , 78 S. W. 439 (discretion). 1904,
Mise V. Com., — Ky. — , 80 S. W. 457 (homicide). 1906, Louisville v. Caron, — Ky. — ,
90 S. W. 604 (discretion). 1906, Cohankus Mfg. Co. v. Rogers' Gdn., — Ky. — , 96 S. W.
438 (injury at a machine ; view revised in discretion).
1904, Blanchard v. Holyoke St. R. Co., 186 Mass. 582, 72 N. E. 94 (personal injuries; view
of plaintiff in her home, held not improperly refused in the trial Court's discretion). 1907,
Yore V. Newton, 194 Mass. 250, 80 N. E. 472 (time of view during trial is in the trial
Court's discretion ; but a motion by one,Qf the parties is necessary).
1906, Dupuis V. Saginaw V. T. Co., 146 Mich. 151, 109 N. W. 413 (view of the scene of a
street-car accident, and an experiment under the same conditions).
1913, People v. Auerbach, — Mich. — , 141 N. W. 869 (murder).
1904, Maloney v. King, 30 Mont. 158, 76 Pac. 4 (applying C. C. P. § 1081).
1907, Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45 (refusal to permit a view of the defendant's
mine where the plaintiff was injured, held proper in discretion).
1913, Serdan v. Falk Co., 153 Wis. 169, 140 N. W. 1035 (foundry where the injury was re-
ceived).
259
§ 1164 VIEW BY JURY
[Note 1 — continued]
A view may be taken of a place in another county, unless a statute expressly limits the scope :
1908, Beck v. Staats, 80 Nebr. 482, 114 N. W. 633 (conveyance of land in another county;
the trial Court in discretion authorized to order a view anywhere in the State ; other cases
collected in the opinion).
§ 1166. Unauthorized View.
[Note 2; add:]
That a judge himself, sitting vnthoutajury, may not take a private view of premises without
notice to the parties, is held in Elston v. McGlauflin (1914), — Wash. — , 140 Pac. 396. No
doubt, as a matter of ordinary fairness, such should be the practice ; but the reversal of the
above case, merely because the judge did so, and because he happened also as a resident
of the district to be less ignorant of conditions than most judges would be, is a serious error.
It perpetuates the judicial straitjacket. It puts off the day when our judges shall be given
more trust and more power, — more discretion to bend stiff rules of substantive law where
elasticity will do justice, — more liberty to apply in the procedure of law-courts that direct-
ness and common sense which all of us employ outside the courts.
We commend the perusal of the above opinion to all lawyers D(rho desire to test themselves.
He who on reading it finds it perfectly natural in result and unrepugnant in reasoning, will
know that he is as yet unaware of the spirit of the coming generation, and that he must
seek earnestly for light. — • A good volume for him to read would be "The Science of Legal
Method" (vol. IX of the Modern Legal Philosophy Series, 1915).
§ 1168. Non-Transmissibility of Evidence on AppeaL
[Note 1; add:]
1904, Wistrand v. People, 213 111. 72, 72 N. E. 748 (rape; the jury not allowed to consider
the defendant's appearance "to fix his age"; citing and following the erroneous theory of
Stephenson v. State, Ind., infra).
[Note 5; add:]
1906, Pittsburgh C. C. & St. L. R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033 (injured
foot exhibited ; L. N. A. & C. R. Co. v. Wood followed).
1895, Moore v. R. Co., 93 la. 484, 61 N. W. 992 (collision on a railway track; view held
improper because of an experiment with an engine).
1906, Mier v. Phillips F. Co., 130 la. 570, 107 N. W. 621 (trespass in mining coal; "evidence
afforded by the condition of the premises on a view " is not permissible).
W04, Rose B. Harllee, 69 S. C. 523, 48 S. E. 541 (a statute provided that a mortgage of chat-
tels should not be valid unless the description in the document was " in writing or typewriting,
but not printed" ; in an action on such a mortgage, the jury found a verdict based on the
document being valid, and the judge ordered a new trial because the description was printed ;
held, that the order could not be reversed "on the ground that there was no evidence of the
description being printed").
[Note 7; add:]
1905, People v. Wood, 145 Cal. 659, 79 Pac. 367 (map used by witness).
1907, Forbes v. Omaha, 79 Nebr. 6, 112 N. W. 326.
1905, Harmon v. Terr., 15 Okl. 147, 79 Pac. 757, 765.
Contra: 1913, Rockford v. Mower, 259 III. 604, 102 N. E. 1032.
[Note 12; add:]
1899, Seaverns v. Lischinski, 181 111. 358, 54 N. E. 1043 (rope exhibited to the jury ; error
can be assigned, even though the bill of exceptions cannot embody all the evidence ; but a
260
VIEW BY JURY § 1182
[Note 1§ — continued]
verdict cannot be "based exclusively on knowledge so acquired"; this is a correct way of
stating such a rule).
1903, Spohr v. Chicago, 206 111. 441, 69 N. E. 615.
1903, Groves & S. R. R. Co. v. Herman, 206 id. 34, 69 N. E. 36.
1904, Illinois, I. & M. R. Co. v. Humiston, 208 id. 100, 69 N. E. 880.
1908, Mercer Co. v. Wolff, 237 111. 74, 86 N. E. 708.
1906, Moorhead v. Arnold, 73 Kan. 132, 84 Pac. 742 (ballots tampered with).
1903, State v. Landry, 29 Mont. 218, 74 Pac. 418 (view of a mare ; jury's view is only to
"enable them to understand and apply the evidence").
1908, Hinners v. Edgewater & F. L. R. Co., 75 N. J. L. 514, 69 Atl. 161 (jury's view may be
used).
1905, Blincoe v. Choctaw, O. & W. R. Co., 16 Okl. 286, 83 Pac. 903 (eminent domain;
"you have a right to exercise your own judgment, based upon your inspection and observa-
tion, together with all the evidence, etc.," held a proper instruction ; good opinion by Gillette,
J.).
1913, Roberts v. Philadelphia, 239 Pa. 339, 86 Atl. 926 (approving Flower ». R. Co.).
1896, Kimball v. Friend's Adm'r, 95 Va. 125, 27 S. E. 901 (view does not authorize jury
to base verdict on their inspection).
1912, Murphy D. Chicago M. & S. P. R. Co., 66 Wash. 663, 120 Pac. 525 (approving R. Co.
V. Rceder).
1907, Chadister v. Baltimore & O. R. Co., 62 W. Va. 566, 59 S. E. 523 (approving the pre-
ceding cases).
1906, Hughes v. Chicago, St. P., M. & O. R. Co., 126 Wis. 525, 106 N. W. 526 (preceding
rulings held not to forbid a juror testifying on a subsequent trial from knowledge obtained
by a view at a former trial). 1909, American States S. Co. v. Milwaukee N. R. Co., 139
Wis. 199, 120 N. W. 844.
§ 1177. Documentary Originals; History of the Rule.
[NoteQ; add:]
Compare further the historical data in Professor James Barr Ames' article on "Specialty
Contracts and Equitable Defences," Harvard Law Review, IX, 49 (1895).
§ 1181. Rule not applicable to Uninscribed Chattels.
[Note 1; add:]
1881, McClary «. State, 75 Ind. 260, 265 (failure of prosecution to produce the knife used
in an assault, not error).
§ 1182. Rule as applicable to Inscribed Chattels.
[Note!; add:]
1904, Kirkland v. State, 141 Ala. 45, 37 So. 352 (rule of production applied to the date and
postmark of a letter).
1906, Young v. People, 221 111. 51, 77 N. E. 536 (a card inscribed : "L. Y., 3030 Indiana
Avenue, phone Douglas 2685" ; production required).
1906, Mattson s. Minn. & N. W. R. Co., 98 Minn. 296, 108 N. W. 517 (death by a dynamite
explosion ; to prove the numbers marked on the wrappers of the dynamite sticks, the trial
Court's refusal in discretion to order production of the dynamite in wrappers was held
proper).
[Note 6, par. 2, 1. 4 from bottom of page ; add :]
N. Y. St. 1913, c. 412, p. 871 (amending C. C. P. § 2618).
261
§ 1182 PREFERENTIAL RULES
[Note 8; add:]
Whether in such a case a layman may testify by comparison of specimens, who had seen
the lost original but did not know whose handwriting it was, is examined post, § 2004.
§ 1186. Production of Original Always Allowable.
[Note 1 ; add :]
1907, Sellers v. Page, 127 Ga. 633, 56 S. E. 1011 (record of same court).
Kan. St. 1905, e. 323 (quoted post, § 1225, n. 1 ; nothing therein "shall prevent the produc-
tion of the original"). *
1907, Carp v. Queen Ins. Co., 203 Mo. 295, 101 S. W. 78 (judicial record).
1913, Harmening v. Howard, — N. D. — , 141 N. W. 131 (U. S. land-office records).
1904, Manning v. State, 46 Tex. Cr. 326, 81 S. W. 957 (judicial record).
U. S. St. 1904, April 19, c. 1398, Stat. L. vol. 33, p. 186 (original applications, etc., in the
land office, may be produced ; cited more fully post, § 1676, n. 11).
[Note 7; add:]
Distinguish also the question whether ballots produced are to be preferred as evidence to
the finding or certificate of the election officers who first counted them {post, § 1351).
§ 1187. Dispensing with Authentication does not dispense with Production.
[Note 1, par. 1 ; add:]
1910, Fidelity & D. Co. v. Aultman, 58 Fla. 228, 50 So. 991 (suit on injunction bond, the
bond's execution not being denied).
§ 1189. Order of Proof, etc.
[NoU2; add:]
1910, Felker v. Breece, 226 Mo. 320, 126 S. W. 424.
§ 1190. Production made; may a Copy also be Offered?
[Note 2; add:]
1902, Hong Quon v. Chea Sam, 14 Haw. 276 (like Walker v. Walker, post, § 1226, n. 7).
1853, Foulke v. Bray, 1 Wis. 104 (judgment).
§ 1192. General Principle of Unavailability.
[Text, p. 1404, 1. 5; add a new par. (4) :]
(4) In several Canadian provinces, the principle of unavailability has been
abandoned, for certain documents in which ordinarily no real dispute arises.
This measure is a sensible and progressive one and deserves universal adoption.
Its essential feature is that a copy may be used unconditionally, if the opponent
has been given an opportunity to inspect it.^
" Statutes cited post, § 1223, n. 11.
§ 119.3. Loss or Destruction; History.
[Note 2; add:]
The history can be further seen in other lines of cases cited in Professor Ames' article,
"Specialty Contracts and Equitable Defences," Harvard 'Law Review, IX, 49 (1895).
262
PRODUCTION OF DOCUMENTARY ORIGINALS § 1196
§1194. Same: General Tests, etc.
[Note 4; add:]
1909, Robinson v. Singerly P. & P. Co., 110 Md. 382, 72 Atl. 828.
1904, Liles v. Liles, 183 Mo. 326, 81 S. W. 1101.
1910, Felker v. Breece, 226 Mo. 320, 126 S. W. 424 (deed burned).
1904, Koehler ,». Schilling, 70 N. J. L. 585, 57 Atl. 154.
1905, Tucker «. Tucker, 72 S. C. 295, 51 S. E. 876.
1906, Leesville Mfg. Co. v. Morgan W. & I. Wks., 75 S. C. 342, 55 S. E. 768.
Contra : 1904, Avery v. Stewart, 134 N. C. 287, 46 S. E. 519 (a reactionary ruling).
§ 1195. Same: Specific Tests, etc.
[Note 1; add:]
1906, Saunders v. Tuscumbia, R. & P. Co., 148 Ala. 519, 41 So. 982 (approving Foster v.
State).
1904, Prussing v. Jackson, 208 III. 85, 69 N. E. 771 (libel in a letter printed in a newspaper ;
the rule is that "the person in whose possession it was last traced must be produced, unless
shown to be impossible, in which case search among his papers must be proved, if that can
be done").
1883, Kearney v. Mayor, 92 N. Y. 617, 621.
[Note 2; add:]
1905, Tagert v. State, 143 Ala. 88, 39 So. 293 (search for a note, held not sufficient on the
facts). 1905, Alabama Const. Co. v. Meador, 143 Ala. 336, 39 So. 216 (similar, for a
letter).
1906, Saunders v. Tuscumbia R. & P. Co., 148 Ala. 519, 41 So. 982 (mechanics' lien, search
held sufficient on the facts).
1906, Mortgage T. Co. v. Elliott, 36 Colo. 238, 84 Pac. 980 (note ; loss sufficiently shown).
1904, Rhodus v. Heffernan, 47 Fla. 206, 36 So. 573 (administrator's schedule; loss suffi-
ciently shown).
1903, Sweeney v. Sweeney, 119 Ga. 76, 46 S. E. 76 (sheriff's ^. /a., sufficiently shown lost).
1904, Wolters v. Red ward, 16 Haw. 25 (bond; loss sufficiently shown).
1906, Interstate Inv. Co. v. Bailey, — Ky. — , 93 S. W. 578 (deed; loss sufficiently shown).
1904, Koehler v. SchilUng, 70 N. J. L. 585, 57 Atl. 154 (contracts ; Johnson v. Arnwine
followed).
1904, Avery v. Stewart, 134 N. C. 287, 46 S. E. 519 (postal card ; loss not sufficiently shown).
1912, Greene v. Messick Grocery Co., 159 N. C. 78, 74 S. E. 812 (telegram; here the ruling
seems to be unconscionably strict).
1904, State v. Leasia, 45 Or. 410, 78 Pac. 328 (letter; loss sufficiently shown).
1904, Brown v. Harkins, 131 Fed. 63, 65 C. C. A. 301 (distiller's books and transcript in
collector's office ; loss not sufficiently shown on the facts). -
§ 1196. Same : Kinds of Evidence Admissible, etc.
[Note 5; add:]
1912, Kenworthy v. Slooman, 62 Or. 604, 125 Pac. 273.
[Note 7, par. 2; at the end, add:] ^
and the cases cited ante, §§ 158, 664.
[Note 8; add:]
1906, Interstate Inv. Co. v. Bailey, — Ky. — , 93 S. W. 578 (deed).
263
§ 1198 PRODUCTION OF DOCUMENTARY ORIGINALS
§ 1198. Same : Intentional Destruction by the Proponent.
[Note 1; add:]
1906, Gibbs v. Potter, 166 Ind. 471, 77 N. E. 942 (rule applied to an altered document).
1911, Di Palma v. Weinman, 16 N. M. 302, 121 Pac. 38 (injury to business by destruction of
goods and building and consequent removal ; the case having been four times tried in eight
years, the plaintiff's destruction of his invoices, etc. held to be sufficiently explained;
approving the text above).
1905, Nelson v. Nat'l Drill Mfg. Co., 20 S. D. 299, 105 N. W. 630 (letters destroyed without
improper motives ; other evidence of them admitted).
[Text, p. 1419, 1. 4 from the end of the section ; after "grantee,"' insert:]
" Or whether an alteration avoids the instrument,"
[Note 3; add:]
1906, Grossman v. Keister, 223 III. 69, 79 N. E. 58 ; 1904, Tabor v. Tabor, 136 Mich. 255,
99 N. W. 4; and the exhaustive article by Professor S. Williston, Harvard Law Review,
XVIII, 105 (1904), on "Discharge of Contracts by Alteration."
§ 1200. Detention by Opponent : (a) Opponent's Possession.
[Note 1; add:]
1906, Young v. People, 221 111. 51, 77 N. E. 536 (letter last seen in possession of K. ; notice
to K. required, before evidence of contents was admissible).
[Note 3; add:]
1908, Cutter-Tower Co. v. Clements, 5 Ga. App. 291, 63 S. E. 58.
[Note 4l ; add :]
The following case belongs here :
1913, Owner v. Bee Hive Spinning Co., [1914] 1 K. B. 105 (violation of factory act, plaintiff
being an official inspector ; to prove the contents of an abstract of the Factory Act as affixed
to the wall in defendant's factory, the plaintiff offered secondary evidence ; the law required
the affixed abstract to be kept constantly affixed ; defendant argued that notice to produce
should have been given; held, that the case was one of an irremovable document, and
that the principle of § 1219, applied; Mortimer v. M'Callan cited).
§ 1201. Same : Mode of Proving Possession.
[Note 1 ; add :]
1903, Landt v. McCullough, 206 111. 214, 69 N. E. 107 (lease).
1906, Elmslie v. Thurman, 87 Miss. 537, 40 So. 67 (bill to eflforce a vendor's lien on land
conveyed to defendants; the latter not denying execution, their possession of the deed
was presumed).
1906, People v. Dolan, 186 N. Y. 4, 78 N. E. 569 (forgery of notes ; other forged notes being
relevant to show knowledge, etc., the prosecution was excused from producing the originals,
without proof of loss, due notice to produce having been given to the defendant, since
here the course of business raised the inference "that they were all returned to the possession
of the defendant").
1912, Landon v. Morehead, 34 Okl. 701, 126 Pac. 1027.
[Note 2; add:]
1906, People v. Dolan, 186 N. Y. 4, 78 N. E. 569.
264
PRODUCTION OF DOCUMENTARY ORIGINALS § 1207
[Note 3 ; add, under Accord :]
1905, City Bank v. Thorp, 78 Conn. 211, 61 Atl. 428 (assignments sent to defendant, who
denied their receipt and possession ; copies admitted).
1904, Supreme Council v. Champe, 127 Fed. 541, 63 C. C. A. 282 (press-copy admitted, the
letter having been proved written, but its mailing and its receipt being doubtful).
[Note 3 ; under Contra ;]
Dele the citation of 111. L. & L. Co. t. Bonner, 75 111. 315.
§ 1203. Same : (6) Notice to Produce ; Rule not Applicable.
[Note 5; add:]
1909, Jordan v. Austin, — Ala. — , 50 So. 70 (approving the above conclusion).
1906, Stark v. Burke, 131 la. 684, 109 N. W. 206 (plaintiff's document traced to R., a hostile
witness, who denied possession of such a document ; plaintiff not required to call R. to pro-
duce a document which he admitted having but asserted not to be the plaintiff's).
1905, Neubert v. Armstrong W. Co., 211 Pa. 582, 61 Atl. 123 (copy of letter received without
notice; but the point is not raised).
Compare the situation noticed -post, § 1209, n. 1.
§ 1205. Same : (2) Implied Notice in Pleadings.
[Note 1 ; add :]
1912, ^tna Ins. Co. v. Bank, C. C. A., 194 Fed. 385 (policy-holder's notification to the
defendant of a fire loss, held improperly proved orally ; the present point was not raised, but
should have been, and it is astonishing that a court of appeal will reverse a judgment
in such a case without noticing so obvious a point to save the reversal).
[NoteZ; add:]
The following statutes seem to rest on this principle :
Ala. St. 1909, No. 191, Spec. Sess. p. 63, Aug. 25, § 22i (parol testimony of any U. S. internal
revenue liquor tax stamp or license, admissible on a trial for illegal liquor sales, fete, under
the prohibition law).
Fla. St. 1907, c. 5688, p. 201, May 11 (amending Gen. St. § 3558; U. S. revenue license or
tax stamp in possession of alleged dealer in liquors may be proved by witnesses).
§ 1206. Rule of Notice Satisfied ; (3) Notice of Notice.
[Nate 2; add:]
1909, T'umer's Case, 3 Cr. App. l03, 118, 157, [1910] 1 K. B. 346 (under St. 1908, 8 Edw.
VII, c. 59, § 10, former convictions may be evidenced only if seven days' notice has been
given to the accused ; no copy of this notice had been preserved, and oral evidence was offered ;
" it is a general rule that you have not to give notice to produce a notice ") .
[NoteZ; add:]
Kan. St. 1909, c. 179, p. 324, Mar. 12, § 2 (notice of demand for release of oil lease, etc. ;
a letter-press or carbon or written copy thereof" may be used as if the original).
1912, Eastman v. Dunn, 34 R. I. 416, 83 Atl. 1057 (notice of a claim ; copy allowed without
notice to produce the original ; but the opinion states the rule confusedly).
§ 1207. Same : Exceptions to Rule of Notice.
[Note 3, par. 1 ; add, under Contra :]
1908, Moore «. State, 130 Ga. 322, 60 S. E. 544 (notice not needed for instirance policies in
defendant's possession; reasoning unsound).
265
§ 1207 PEODUCTION OP DOCUMENTARY ORIGINALS
[Note 3 — continued]
1906, O'Brien v. U. S., 27 D. C. App. 263, 273 (copy of document delivered to the defendant
charged with embezzlement ; notice not required ; the ruling goes upon a misunderstanding
of the principle of McGinnis v. State, quoted ow/e,^§ 1205).
[Note 4 ; add :]
1904, Patten v. Fox, 179 Mo. 525, 78 S. W. 804 (like Gilbert v. Boyd).
But distinguish the rule of some statutes as to another kind of notice in such cases (^ogt,
§ 1859, par. 4).
§ 1208. Same : Procedure of Notice.
[Note 7; add:]
1903, Landt v. McCullough, 206 111. 214, 69 N. E. 107 (semble).
§ 1209. Same : (c) Failure to Produce, etc.
[Note 1; add:]
The following case is peculiar : 1904, Romero v. N. I. M. & D. Co., 113 La. 110, 36 So. 907
(the plaintiff alleging a certain contract, the defendant admitting a contract but denying its
terms to be as alleged and alleging its loss, the trial judge's order before trial, taking the con-
tract to be as alleged by the plaintiff, was held erroneous).
Compare the cases cited ante, § 1203, n. 5.
[Note 2, par. 1 ; add :]
Oxford (Bishop of) v. Henly, [1907] P., 88, 91, 104 (proceeding for ecclesiastical offence and
canonical punishment ; the respondent having refused to produce letters from the prosecutor
to the respondent, copies verified by the prosecutor were admitted).
1910, People v. Everham, — 111. — , 93 N. E. 373 (rape of a daughter under age ; the other
children wrote a letter to the defendant charging him with rape ; a copy was offered and
admitted, after notice to the defendant to produce the original ; held that the privilege was
not violated).
1911, People V. Aldorfer, 164 Mich. 676, 130 N. W. 351.
§ 1210. Same : Consequences of Non- Production, etc.
[Note 1 ; add:]
1910, Cyr ■B. DeRosier, 40 N. Br. 373 (lease ; Doe v. Hodgson followed).
S. C. St. 1910, No. 361, p. 695 (bills of lading; quoted post, § 2132, n. 5).
[Note 2; add:]
1911, Walter Cabinet Co. v. Russell, 250 111. 416, 95 N. E. 462 (in the absence of express
statutory authority, the trial Court cannot enter judgment against a claim, for non-produc-
tion of documents).
1906, Hanson v. Lindstrom, 15 N. D. 584, 108 N. W. 798 (plaintiff failed to supply on demand
before trial a copy of a contract, for the defendant's use in preparing his answer ; on the
facts the statute. Rev. C. 1899, § 5644, quoted post, § 1858, was held not appUcable).
1904, Roberts v. Francis, 123 Wis. 78, 100 N. W. 1076 (penalty for non-production, not
enforced on the facts).
[Text, p. 1437 ; at end of § 0, add a new par. (4) :]
(4) Where the opponent fails to produce on notice, and has the documents
in court, the Court may order him to produce, without subpoena, the demand-
266
PEODUCTION OF DOCUMENTARY ORIGINALS § 1213
[Text, p. 1437 — continued]
ing party not being confined to this right to use secondary evidence : post,
§2219, n. 8; § 2200, n. 4.
§1212. Detention by Third Person ; (a) Person within the Jurisdiction.
[Note 1; add:]
1905, De Leon v. Terr., — Ariz. — , 80 Pac. 348 (jailer allowed to testify to the contents of
a letter by the accused to his wife).
1913, Schall V. Northland M. C. Co., 123 Minn. 214, 143 N. W. 357 (original in possession
of Federal bankruptcy trustee, production not excused, because no privilege applies).
[NoteS; add:]
1905, Security Trust Co. v. Robb, 142 Fed. 78, C. C. A. (letter in a third person's hands;
subpoena necessary).
1906, Menasha W. W. Co. v. Harmon, 128 Wis. 177, 107 N. W. 299 (letters sent to the
county clerk, who had not been subpcenaed; copies excluded).
§ 1213. Same : (6) Person without the Jurisdiction.
[Note 1; add:]
1904, New England M. S. Co. v. Anderson, 120 Ga. 1010, 48 S. E. 396 (witness annexing
a copy to his deposition ; original required to be accounted for).
1896, Bishop v. American Preservers' Co., 157 111. 284, 307, 41 N. E. 765 ("due effort"
must be made for "papers out of the jm-isdiction"). 1907, McDonald v. Erbes, 231 111.
295, 83 N. E. 162 (contract between plaintiff and defendant, left in the hands of a third
person, who testified that it was at his home in Wisconsin, if anywhere; copy excluded,
since "no effort was made by the appellant to obtain the original agreement prior to the
trial " ; such being "the rule in this State").
1883, Kearney v. Mayor, 92 N. Y. 617, 621 ("the last person known to have been in posses-
sion of the paper must be examined as a witness," and "even if he is out of the State, his
deposition must be procured if practicable, or some good excuse given for not doing so").
1906, Pringey v. Guss, 16 Okl. 82, 86 Pac. 292 (action on a contract, the original being in the
possession of R., living in Nebraska ; copy excluded, no diligence being shown to procure
the original).
1846, McGregor v. Montgomery, 4 Pa. St. 237 (lease in the hands of a third person, out of
the State, who had been notified to produce ; other evidence excluded).
1907, McCollum v. Southern P. R. Co., 31 Utah 494, 88 Pac. 663 (special ruling upon a rail-
road ticket).
1906, Bruger v. Princeton & S. M. M. F. Ins. Co., 129 Wis. 281, 109 N. W. 95 (appUcation
for an insurance policy out of the jurisdiction ; "some fair showing should be made of efforts
to obtain the original, unless it is clear that they would have been fruitless").
[Note 2; add:]
1906, Hoyle v. Mann, 144 Ala. 516, 41 So. 835 (ejectment; a writing "out of the State,"
held provable orally).
1907, Sellers v. Farmer, 151 Ala. 487, 43 So. 967 (unrecorded deed presumed to be in pos-
session of grantee out of the State, proved orally) .
1912, McCord-CoUins M. Co. v. Dodson, — Kan. — , 121 Pac. 1085 (draft in a Missouri
bank, retained by the deposing cashier; copy held sufficient).
1904, Cooley v. Collins, 186 Mass. 507, 71 N. E. 979 (a lease presumed to be in D.'s posses-
sion out of the jurisdiction, and therefore provable orally).
267
§ 1213 PEODUCTION OF DOCUMENTARY ORIGINALS
[Note 3; add:]
1908, State Bank & T. Co. v. Evans, 198 Mass. 11, 84 N. E. 329.
1906, Hanson v. Lindstrom, 15 N. D. 584, 108 N. W. 798 (document sent to a third person
out of the State ; diUgence to procure it not being shown, secondary evidence was rejected).
1903, Speiser v. Phoenix M. L. Ins. Co., 119 Wis. 530, 97 N. W. 207 (insurance-application
in N. Y., the holder refusing to give it up ; proved by copy attached to deposition).
§ 1215. Irremovable Judicial Records.
[Note 10; add:]
N. C. Rev. 1905, § 1616 (Hke Code § 1342).
§ 1219. Irremovable Official Doctmients ; Specific Instances, etc.
[Noted; add:]
1913, Owner v. Bee Hive Spinning Co., [1914] 1 K. B. 105 (document kept by law affixed
publicly in a factory ; cited more fully ante, § 1200, n. 4).
1909, Chicago v. Mandel, 239 111. 559, 88 N. E. 226 (reports of the South Park Commis-
sioners held not provable by printed copy without accounting for the originals ; unsound ;
no authority cited).
1906, State v. Nippert, 74 Kan. 371, 86 Pac. 478 (Federal revenue collector's records,
proved by examined copy).
1906, State v. Schaeffer, 74 Kan. 390, 86 Pac. 477 (similar).
1906, Clement v. Graham, 78 Vt. 290, 63 Atl. 146 (State auditor's vouchers, filed in his
office, held to be of a public nature).
§ 1223. Private Books of Public Importance.
[Note 10, par. 1 ; add:]
Ont. St. 1909, c. 43, § 26 (like R. S. 1897, c. 73, § 26).
Yukon St. 1904, c. 5, § 11 (like Dom. St. 1893, c. 31, § 12 ; quoted post, § 1680).
1895, Mandel v. Swan L. C. Co., 154 111. 177, 189, 40 N. E. 462 (certain corporate records,
etc., held not properly proved under this statute by copies in a deposition).
1904, Chicago, W. & V. C. Co. v. Moran, 210 111. 9, 71 N. E. 38 (contract between a miners'
union and a coal company, held not properly proved under § 18 of the above statute by a
sworn copy without seal) .
1905, Chicago, B. & Q. R. Co. v. Weber, 219 111. 372, 71 N. E. 489 (a lease of the defendant
railroad's entire property, evidenced by a copy certified by its secretary under corporate
seal, held to be a "paper," under § 15 of the above statute).
[Note 11; add:]
Alta. St. 1910, 2d Sess., Evidence Act, c. 3, § 50 (like Ont. R. St. 1897, c. 73, § 51).
Ont. St. 1909, c. 43, § 49 (like R. S. 1897, c. 73, § 51).
Sask. St. 1907, c. 12, Evidence Act, § 21 (like Ont. R. St. 1897, c. 73, § 51).
§ 1225. Recorded Conveyances ; Statutes and Decisions.
[Note 1; add:]
Canada : AlbeHa : St. 1906, c. 24, § 17 (land-titles ; quoted post, § 1651).
British Coluwhia: St. 1906, 6 Edw. VII, c. 23, § 118 (like Rev. St. 1897, c. Ill, § 48); ib.
§ 120 (the land registrar's certified copies of "any instruments affecting land which may
be deposited, kept, filed, or registered in his office," and affecting land in his district, are
admissible "as prima facie evidence of the document of which it purports to be a copy,
without proof of the signature or seal of such registrar").
268
PRODUCTION OF DOCUMENTARY ORIGINALS § 1225
[Note 1 — continued]
Nova Scotia: 1904, Nova Scotia Steel Co. v. Bartlett, 35 Can. Sup. 527 (under N. Sc. Rev.
St. 1900, c. 163, § 20, supra, a plan on file, referred to in a duplicate original grant, is not
provable by certified copy ; the ruling is a perverse one, for if the theory of substantive law
sufficed to make the plan a part of the grant by reference, why could not the same theory
make the statute admitting certified copies of the grant suffice also for the plan forming
part of the grant?). St. 1910, 10 Edw. VII, c. 28 (amending Rev. St. 1900 c. 163, § 27;
cited more fully post, § 1651).
Ontario: St. 1909, c. 43, §§ 33, 34 (like R. S. 1897, c. 73, § 32) ; ib. § 46 (like ib. § 46) ; ib.
§ 47 (like ib. § 47).
Saskatchewan: St. 1906, c. 24, §38 (land-titles; like Alb. St. 1906, c. 24, §38). St.
1907, c. 12, Evidence Act, § 16 (any instrument filed or registered in a land registration
ofiice is provable by the land-registrar's certified copy).
Yukon Consol. Ord. 1902, c. 39, § 28 (registered bills of sale and mortgages of personalty ;
the registration clerk's certified copy "shall be received as prima facie evidence for all pur-
poses as if the original instrument was produced").
St. 1904, c. 5, § 21 (copies of recorded deeds; quoted post, § 1651) ; ib. §§ 24, 26 (like N. Sc.
Rev. St. 1900, c. 163, §§ 24, 26, for the Gold Commissioner's office).
United States : Ala. St. 1911, No. 52, p. 31, Feb. 20, § 2 (certified transcript of- recorded
corporate conveyance, admissible if "the original conveyance has been lost or destroyed,
or the party offering a transcript has not the custody or control thereof," unless the cor-
poration is in possession and forgery is pleaded). ' '
Fla. : Const. 1885, Art. 16, § 21 (recorded deeds and mortgages are provable by certified copy,
provided "the original is not within the custody or contrbl of the party offering the copy").
Ga. : 1906, Bower v. Cohen, 126 Ga. 35, 54 S. E. 918 (deed ; search held not sufficient on the
facts, under Code § 3630).
1906, Patterson v. Drake, 126 Ga. 478, 55 S. E. 175 (Cox v. McDonald, supra, followed, las
to the trial Court's discretion).
III. : 1905, Baltimore & O. S. W. R. Co. v. Brubaker, 217 111. 462, 75 N. E. 523 (evidence
held insufficient). 1906, Tucker v. Duncan, 224 111. 453, 79 N. E. 613 (proof held insuffi-
cient). 1906, People v. Wiemers, 225 111. 17, 80 N. E. 45 (plat of an addition, from the
recorder's office ; under Rev. St. c. 30, § 35, and c. 109, § 2, supra, the original must be
shown not to be within the offeror's control). 1910, Burke v. Glos, 244 111. 627, 91 N. E. 701
(affidavit omitting the proviso "not intentionally destroyed" etc., held insufficient). 1911,
Ellison V. Glos, 248 111. 275, 93 N. E. 763 (collective affidavit applying to each deed held
sufficient).
Kan. St. 1905, c. 323 (amending Gen. St. 1897, c. 97, § 3, being § 372, c. 80, Gen. St. 1868 ;
certified copies or the record of such documents may be admitted "without proof that the
original is not in the possession or under the control of the party desiring to use the same") ;
c. 324 (similar, for instruments defectively recorded with the register of deeds for ten years
past).
Minn. St. 1905, c. 305, §§ 35, 42 (registration of title; similar to the Illinois act supra;
provision made for using certffied copies of the certificate of title and also of deeds, etc., filed
with the registrar, etc.).
Mo. : 1904, Patton v. Fox, 179 Mo. 525, 78 S. W. 704 (original shown to be in defendant's
possession ; no notice required ; see the citations ante, § 1207, n. 4).
Mont. St. 1913, c. 86, p. 378, Mar. 14, § 10 (chattel mortgages recorded on acknowledgment ;
certified copy admissible "if said original be lost or out of the power of the person wishing to
use it").
N. Mex. St. 1905, c. 38, § 3 (recorded contract of sale, etc., of animals, provable by certified
copy). .
N. Y. St. 1905, c. 450 (validates acknowledgments recorded for thirty years).
iV. G. Rev. 1905, §§ 1023, 1598, 1599 (like Code, §§ 1251, 1253, 1263); Rev. 1905, § 1619
aike Code, § 1344).
269
§ 1225 PRODUCTION OF DOCUMENTARY ORIGINALS
[Note 1 — continued]
Okl. : 1904, Enid & A. R. Co. v. Wiley, 14 Okl. 310, 78 Pac. 96 (record of a U. S. land-patent
in a county registry of deeds ; original required to be accounted for, under Rev. & Ann. St.
1903, § 4575).
S. C. : 1905, Uzzell v. Horn, 71 S. C. 426, 51 S. E. 253 (loss of original sufficiently proved
by the admission of the opponents, residing in the house of the last custodian, that they did
not have it). >
S. D. : 1904, Reeder v. Wilber, 18 S. D. 426, 100 N. W. 1099 (statute applied).
Tex. St. 1907, c. 165, p. 308 (Rev. Civ. St. § 2312, amended, for defectively acknowledged
deeds).
U. S. : 1908, Eastern Dynamite Co. v. Keystone P. M. Co., C. C. N. D. Pa., 164 Fed. 47
(certified copy of record of an assignment of patent, the assignment having been acknowl-
edged before a notary; original required).
Wyo. St. 1913, c. 126, p. 174 (livestock brands ; amending Comp. St. 1910, § 2604 ; recorded
assignments of brands or marks to be proved by certified copy "as is now provided for certi-
fied copies of instruments affecting real estate").
§ 1226. Same : Sundry Consequences, etc.
[Note 7; add:]
1905, Senterfeit v. Shealy, 71 S. C. 259, 51 S. E. 142 (the original deed appearing to be muti-
lated, the record of it was shown in court).
Such a statute as Kan. St. 1905, c. 323, providing that "the original when produced
shall prevail over the record or fcopy" would probably not forbid the above use of a copy.
§ 1230. Voluminous Documents, etc.
[Notel; add:]
1911, Brown v. First Nat'l Bank, 49 Colo. 393, 113 Pac. 483 (bank's books). ,
1910, Cabaniss v. State, — Ga. — , 68 S. E. 849 (unlawful bank-dividend ; principle applied
to expert testimony to net earnings).
1913, State v. O'Neil, 24 Ida, 582, 135 Pac. 60 (false report by a bank officer; expert ac-
countants'summaries, admitted; the above-cited statute ignored). ,
1913, Reinke v. Sanitary District, 260 111. 380, 103 N. E. 236 (graphic summaries of statistics,
admitted).
1909, Shea v. Sewerage & Water Board, 124 La. 299, 50 So. 166 (compilations from records
of contractor's work, admitted).
1904, Mendel v. Boyd, 71 Nebr. 657, 99 N. W. 493 (summary statement of six simple trans-
actions, excluded).
1906, Kannow & Sons v. Farmers' C. S. Ass'n, 76 Nebr. 330, 107 N. W. 563 (expert's com-
putation of the result of weigh-checks in evidence, admitted).
1871, State v. Rhoades, 6 Nev. 352, 376 (expert accountant allowed to state the net balance
of receipts and disbursements in the State Treasurer's books as examined by him, so as to
show the cash that ought to be on hand).
1905, State v. Nevada C. R. Co., 2aNev. 186, 81 Pac. 99 (expert accountant's statements of
the "net earnings" of a railroad company as shown by the books, excluded, partly on the
principle of § 1960, post, and partly because the questions were not framed in proper appli-
cation of the present principle).
1909, Ruth V. State, 140 Wis. 373, 122 N. W. 733 (bank accounts).
[Note 4; add:]
Whether an official custodian of records is a preferred witness is noticed post, § 1272.
270
PRODUCTION OF ©OG^M^STTARY ORIGINALS § 1235
§ 1232. What is the Original Writing ; Duplicates and Counterparts, etc.
[Note 1 ; add :]
1907, International Harvester Co. v. Elfstrom, 101 Minn. 263, 112 N. W. 252 (contract
executed in duplicate in one writing-act as to contents and signature, by placing a car-
bon between sheets, held a counterpart; and either usable without accounting for the
other).
1908, Reeves v. Martin, 20 Okl. 558, 94 Pac. 1058 (triplicate notice of breach of war-
ranty).
1907, Walker v. Southern R. Co., — S. C. — , 56 S. E. 952 (bills of lading being made in
tripUcate, one signed by the shipper and filed with the carrier's auditor, another sent to the
shipper with copied signature, and another filed by the carrier with copied signature, the
first two were held to be duplicate originals, the third to be secondary).
§ 1233. Same : All Duplicates must be Accounted for, etc.
[Note 1 ; add, under Accord :]
1904, Norris v. Billingsley, — Ala. — , 37 So. 664 (oral testimony of defendant's counterpart,
excluded, where plaintiff's was not accounted for).
1906, Hayes v. Wagner, 220 111. 256, 77 N. E. 211.
1912, Pittsburgh C. C. & St. L. R. Co. v. Brown, 178 Ind. 11, 98'N. E. 625 (action on a
bill of lading dehvered to plaintiff by defendant ; the plaintiff's original being lost, and the
pleadings containing a copy conceded to be correct, held that notice to produce the de-
fendant's duplicate original was not necessary).
1906, Peaks v. Cobb, 192 Mass. 196, 77 N. E. 881 (dupUcate of a lease required).
§ 1234. Same : Duplicate Notices, etc.
[Note 3, par. 1 ; add:]
1905, Chesapeake & O. R. Co. v. Stock, 104 Va. 97, 51 S. E. 161.
1906, Menasha W. W. Co. v. Harmon, 128 Wis. 177, 107 N. W. 299 fletters).
[Note 4; add:]
1911, Federal U. Surety Co. v. Indiana L. & M. Co., 176 Ind. 328, 95 N. E. 1104 (a machine
carbon-copy in triplicate; each one held an original).
1911, Goodman »..Saperstein, 115 Md. 678, 81 Atl. 695 (carbon-copy of a letter, held a
dupUcate original).
1907, International Harvester Co. v. Elfstrom, 101 Minn. 263, 112 N. W. 252 (carbon-
copy produced by simultaneous impression on both sheets, held duplicate original ; cited
more fully ante, § 1232, n. 1).
1906, State v. Teasdale, 120 Mo. App. 692, 97 S. W. 995 (a carbon-copy is not a duplicate
original).
1907, Cole V. EUwood Power Co., 216 Pa. 283, 65 Atl. 678 (duplicate notices, one being
carbon-copy, executed in the same manner as the other, held counterparts').
1905, Chesapeake & O. R. Co. v. Stock, 104 Va. 97, 51 S. E. 161 (a carbon-copy made by the
same impression of type is a duplicate original).
§ 1235. Copy Acted on or Dealt with, etc.
[Note 5, par. 1 ; add :]
1904, Simonds v. Cash, 137 Mich. 558, 99 N. W. 754 (copy referred to in conversations).
1904, Wright v. Michigan C. R. Co., 130 Fed. 843, 65 C. C. A. 327 (what is a "duplicate"
bill of lading, under St. 1898, June 13, c. 448, 30 Stat. 459).
271
§ 1236 PRODUCTION OF DOCUMENTARY ORIGINA<LS
§ 1236. Copy made an Original, etc. ; Telegraphic Dispatches.
[Note 1 ; add :]
1906, Flynn v. Kelly, 12 Ont. L. R. 440 (contract by telegram, the dispute being as to its
terms; the defendants' message handed to the telegrapher, held the original, and the
plaintiff bound to prove its loss or destruction ; destruction not presumed after six months).
Yukon St. 1904, c. 5, § 30 (like N. Sc. Rev. St. 1900, c. 163, § 30).
1906, Young v. People, 221 111. 51, 77 N. E. 536 (swindling by bets ; sender's telegram filed
in Wisconsin, held to be the original on the facts, and the copy filed in the Chicago receiving
ofiice, excluded).
1904, Bond v. Hurd, 31 Mont. 314, 78 Pac. 679 (contract for medical services ; message
handed to telegrapher, held the original, on the facts).
1903, Yeiser v. Gathers, — Nebr. — , 97 N. W. 840 (telegram excluded on the facts).
1905, Cobb V. Glenn B. k L. Co., 57 W. Va. 49, 49 S. E. 1005 (principle considered).
§ 1237. Same : Printed Matter.
[Note I; add:]
1904, Prussing v. Jackson, 207 111. 85, 69 N. E. 771 (action for libel against the author of a
letter published in a newspaper ; the letter held to be the original ; unsound, for the declara-
tion alleged publication in the newspaper, and the plaintiff offered to connect the defendant
with it).
§ 1239. Same : Government Land Grants, etc.
[Note 4: ; add:]
1905, Butt V. Mastin, 143 Ala. 321, 39 So. 217 (not a certified copy from a tract book, but
the patent or a certified copy, held the origmal).
1905, Carpenter v. Smith, 76 Ark. 447, 88 S. W. 976 (State land commissioner's exempli-
fication of a swamp-land patent, without accounting for the original patent, not ad-
mitted). 1905, Covington v. Berry, 76 Ark. 460, 88 S. W. 1005 (similar). 1905, Carpenter
V. Dressier, 76 Ark. 400, 89 S. W. 89 (State land commissioner's certified transcript of his
records, not admissible "without first accounting for the deed or certificate" ; careful
opinion by Hill, C. J., confirming Covington v. Berry, Carpenter v. Smith, supra, and
explaining and modifying the opinion in Boynton v. Ashabranner, 75 Ark. 415, 88 S. W.
566, 1011). 1909, Thornton v. Smith, 88 Ark. 543, 115 S. W. 677 (duplicate deed of State
land commissioner, issued under § 4730, Kirby's Digest, held n9t a new deed, but a dupli-
cate only).
1870, Seely v. Wells, S3 111. 120 (records of U. S. land-office, admitted). 1909, Black v.
Chicago B. & O. R. Co., 237 111. 500, 86 N. E. 1065 (record of general land office reciting a
selection of a tract approved by the Secretary of the Treasury, admitted),
la. St. 1906, c. 159 (U. S. and State land patents may be recorded with the county recorder
without acknowledgment, and the record or recorder's certified copies "read in evidence in
all Courts with like effect" as for other instruments). i
N. C. E«v. 1905, § 1697, St. 1901, c. 613 (Secretary of State's certified copy, under seal of
State, of land grants, admissible when duly registered, etc.).
1904, Enid & A. R. Co. v. Wiley, 14 Okl. 310, 78 Pac. 96 (record of a U. S. land-patent in a
county registry of deeds ; original required to be accounted for, under Rev. & Ann. St.
1903, §4575).
Or. St. 1907, c. 117, p. 206, § 17 (State lands; land board to preserve "a true copy of all
such deeds," and "such copies shall be primary evidence of such conveyance"). St. 1909, >
c. 226, p. 377 (urigated desert land; similar to preceding statute). St. 1911, c. 67, p. 106
(amending St. 1907, c. 117). St. 1911, c. 128, p. 175 (amending Lord's Or. Laws, § 597,
for the use of certified copies of lost deeds of State land).
272
PRODUCTION OF DOCUMENTARY ORIGINALS § 1244
[Note 4 — continued]
S. D. St. 1905, c. 149 (amending Rev. Civ. Code, 1903, § 961, so that the record, or a certi-
fied copy, of the recorded copy of U. S. land patents, etc., or of a recorded certified copy
thereof, are "admissible in evidence without further proof").
U. S. St. 1904, April 19, c. 1396, Stat. L. vol. 33, p. 185 ("copies of any patents, records,
books, or papers in the general land office, authenticated by the seal and certified by the
recorder" shall be admissible equally with the originals "as when certified by the com-
missioners of said office"). St. 1904, April 19, c. 1398, Stat. L. vol. 33, p. 186 (original
apphcations, etc., in the land office may be produced; cited more fully post, § 1676,
n. 11).
§ 1240. Same : Tax-Lists, Ballots, etc.
[Note 2; add:]
1912, Deeder v. State, 92 Nebr. 662, 138 N. W. 228 (fraudulent counting of ballots; produc-
tion of the specific ballots, required).
[Note 4, par. 1 ; add:]
S. C. St. 1910, No. 361, p. 695 (bills of lading ; quoted post, § 2132, n. 5).
1904, Brown v. Harkins, 131 Fed. 63, 65 C. C. A. 301 (distiller's books, and the transcript in
the collector's office, required to be kept by U. S. Rev. St. 1878, §§ 3318 and 3330 ; status
as originals, considered).
§ 1243. Application of the Principle ; Oral Utterances, etc.
[Note l;'add:]
1902, Brown v. Equitable L. Assur. Soc'y, 14 Haw. 80, 82 (reading from a letter).
1906, Purinton v. Purinton, 101 Me. 250, 63 Atl. 925 (letters read aloud by the plaintiff;
the defendant not required to account for the letters).
Contra : 1904, State v. Leasia, 45 Or. 410, 78 Pac. 328 (rule applied to the defendant's reading
aloud of a letter ; unsound ; no authority cited).
1909, Eads ®. State, 17 Wyo. 490, 101 Pac. 946 (larceny of a horse; time of knowing about
or authorizing a telegram whose contents were undisputed ; production not required).
§ 1244. Same: Identity of Documents.
[Note 2; add:]
1910, Cabaniss v. State, 8 Ga. App. 129, 68 S. E. 849 (bank-officer's payment of unjustifiable
dividend ; principle applied to lists of notes, etc. charged off as insolvent, etc.).
1904, Smythe's Estate v. Evans, 209 111. 376, 70 N. E. 906 (a bookkeeper's statement of the
footings of figures, etc. is admissible, but not of the amount of profits shown).
[Note 2, last line :]
For "§ 1429," read "§ 1339."
[Note 4:; add:] ,
1905, McPhelemy v. McPhelemy, 78 Conn. 180, 61 Atl. 477 (that no entry of a certain
marriage occurred in a parish-book, allowed).
1907, Wilson v. Wood, 127 Ga. 316, 56 S. E. 457 (that no administration has been granted,
admissible from one who has made a thorough examination of the records).
1906, Colton's Estate, 129 la. 542, 105 N. W. 1008 (attorney's testimony to the absence of a
decree of a certain tenor, admitted ; the official custodian not preferred ; Sykes v. Beckwith,
N. D., disapproved ; good opinion by Ladd, J.).
273
§ 1244 PRODUCTION OF DOCUMENTARY ORIGINALS
[Note 4 — continued]
1907, Stamper v. Com., — Ky. — , 100 S. W. 286 (by the county clerk, that no deed of a
certain sort was recorded, allowed).
1905, State v. Rosenthal, 123 Wis. 442, 102 N. W. 49 (that no record of naturalization existed,
allowed, for one who had made a search).
§ 1245. Same : Fact of Payment of a Written Claim.
[Note 1; add:]
1912, Brannan v. Henry, 175 Ala. 454, 57 So. 967 (payment of taxes).
§ 1246. Same : Fact of Ownership.
[Note 1; add:] ^
1904, Leon v. Kerrison, 47 Fla. 178, 36 So. 173 (conversion of a yacht ; production of the bill
of sale to the plaintiff, not required).
[Note 2; add:]
1906, Minnesota Deb. Co. «. Johnson, 96 Minn. 91, 107 N. W. 740 (whether defendant
claimed land under D. ; "Did you hold it under D. ?" "Yes, I rented it from him," held
proper without producing the lease; "the terms of the tenancy were not in issue"; lucid
opinion by Elliott, J.).
§ 1247. Same : Fact of Transfer of Realty, etc.
[Notel; add:]
1913, Johnson v. Carlin, 121 Minn. 176, 141 N. W. 4 (lease of a farm ; the lease provided
that "if the lessor sells said premises during the life of this lease etc." ; held, that the fact
of sale to H. could be evidenced without producing the deed to H.).
§ 1249. Same : Sundry Dealings with Documents.
[NoteQ; add:]
1913, Maitthews & Son v. Richards, 13 Ga. App. 412, 79 S. E. 227 (that a later note was given
in renewal of a prior one ; production of the later note required).
1905, Elgin, J. & E. R. Co. «. Thomas, 215 111. 158, 74 N. E. 109 (death of a person riding on
cars; the fact that he had in his satchel a ticket between two named points, admitted,
without producing the ticket).
[Note 7; add:]
1905, Goslin v. Com., 121 Ky. 698, 90 S. W. 223 (perjury; that a prosecution was pending;
production required).
1905, State v. Costa, 78 Vt. 198, 62 Atl. 38 (illegal sale of liquors ; a witness to search and
finding under a warrant, not required to produce the warrant).
§ 1250. Miscellaneous Instances.
[Note 1; add:]
1904, Taft V. Little, 178 N. Y. 127, 70 N. E. 211 (testimony that certain building work was
extra; production of plans and contracts required).
274
PRODUCTION OF DOCUMENTARY ORIGINALS § 1257
§ 1254. " Collateral " Pacts ; Specific Instances.
[Note 1; add:]
1904, Garrison v. Glass, 139 Ala. 512, 36 So. 725 (contract for land ; his ownership of adjoin-
ing land, "being a collateral or incidental matter," allowed to be shown by parol). 1905,
Woodall V. State, 145 Ala. 662, 39 So. 718 (charge of desertion of family ; questions as to the
affidavit of complaint and the voter's registration, held collateral). 1905, FrankUn v.
State, 145 Ala. 669, 39 So. 979 (same, for notice of apprehension and arrest, in a charge of
homicide). 1909, Mobile J. & K. C. R. Co. v. Hawkins, 163 Ala. 565, 51 So. 37 (letter).
1905, Wooldridge v. State, 49 Fla. 137, 38 So. 3 (signing of certain warrants).
1904, State v. Mackinnon, 99 Me. 166, 58 Atl. 1028 (keeping a liquor nuisance ; the telephone
contract for the building, held a collateral document).
1908, State v. Clark, 64 W. Va. 625, 63 S. E. 402 (murder of an officer ; oral testimony to his
being constable, allowed).
§ 1256. Party's Admission of Contents ; Porms of Rule, etc.
[Noted; add:]
1906, Purinton v. Purinton, 101 Me. 250, 63 Atl. 925 (rule of Slatterie v. Pooley, allowed to
admit proof of letters by the opponent's oral reading aloud of their contents).
1904, Cooley v. Collins, 186 Mass. 507, 71 N. E. 979, semble (Loomis v. Wadhams approved).
1906, Norcum v. Savage, 140 N. C. 472, 53 S. E. 289 (heirs of P.'s iirst wife claiming against
heirs of his second wife, the land being on record as granted by deed to P., but plaintiffs
claiming that this deed had been obtained by P. in place of a lost deed to his first wife ;
P.'s admissions that there was such a lost deed to his first wife, received).
Undecided: 1906, Minnesota Deb. Co. v. Johnson, 96 Minn. 91, 107 N. W. 740.
[Note 4; add:]
1904, Prussing v. Jackson, 208 111. 85, 69 N. E. 771 (libel in a letter printed in a newspaper;
held, that until the loss of the original was sufficiently shown, the printed copy could not be
used as equivalent, merely upon oral admissions of its identity by the defendant or his
testimony on the stand to that effect ; upon the latter point the ruling is unsound).
1913, Swin^ V. Cloquet Lumber Co., 121 Minn. 221, 141 N. W. 117 (written admissions of
contents, receivable ; here, of a policy and premium note).
[Note 6; add:]
1905, Security Trust Co. v. Robb, 142 Fed. 78, C. C. A. (letter in the hands of a third
person; the defendant's agent's admission on the stand that "the paper offered was a copy
of it," not sufficient ; "the most conclusive proof of its correctness will not render a copy
available, without ground laid for dispensing with the production of the original" ; this is
in itself a perversely rigid rule ; but furthermore the opinion shows no appreciation of the
rule at issue and cites irrelevant precedents).
' § 1257. Same : Related Rules, etc.
[Note 4; add:]
1903, Davis v. Moyles, 76 Vt. 25, 56 Atl. 174 (Carver v. Jackson approved).
[Noted; add:]
1908, Hudkins v. Crim, 64 W. Va. 225, 61 S. E. 166 (forceful opinion by Bramon, J.).
[Note 7, par. 2; add:]
1904, Phillips V. Laughlin, 99 Me. 26, 58 Atl. 64 (issue whether J.'s recorded deed to C,
under whom defendant claimed, was forged by C. ; C.'s letters to J., during C.'s possession,
275
§ 1257 PRODUCTION OF DOCUMENTARY ORIGINALS
[Note 7 — continued]
admitting the forgery, excluded, as against the defendant claiming by recorded mortgage
from C. ; following the opinion of Cooley, J., in Cook v. Knowles, Mich., infra). 1905,
Fall V. Fall, 100 Me. 98, 60 Atl. 718 (deed to M. h^ T., and will by M. to 0. ; C. claims appar-
ently by adverse possession against M., T., and O. ; M.'s declarations, that she was not the
owner and C. was, excluded, following Phillips v. LaughUn ; the opinion is obscure in naming
the parties).
1906, Rix V. Smith, 145 Mich. 203, 108 N. W. 691 (grantor's statements, contemporaneous
with making the deed, as to the location of boundaries, admitted ; opinion obscure, ignoring
the principles involved).
1897, High's Ex'rs v. Pancake, 42 W. Va. 607, 26 S. E. 537 ("Mere oral declarations to
destroy title are inadmissible," because of the statute of frauds). 1906, Wade v. McDougle,
59 W. Va. 113, 52 S. E. 1026 (foregoing case approved).
§ 1259. Witness' Admission of Contents ; Rule in The Queen's Case.
[Text, p. 1514, 1. 19 of the first quotation :]
For " second," read " third."
§ 1260. Same : Arguments against the Rule.
[Note 9; cdd:]
One of the neatest illustrations is found in the examination of Mr. McClelland by Mr.
Hughes, before the New York Legislative (Armstrong) Committee on Insurance, on Nov.
29, 1905.
§ 1261. Details of the Rule.
[Note 1; add:]
1883, Horton v. Chadbourn, 31 Minn. 322, 17 N. W. 865 (but here the rule was too strictly
applied).
[NoU3; add:]
For the question whether the whole of the writing, or only the parts strictly contradictory,
may be introduced, see post, § 2113.
The following is of course sound :
1912, Larkin v. Nassau Electric R. Co., 205 N. Y. 267, 98 N. E. 465 (a statement typewritten
by another person and signed by defendant is not inadmissible merely because he did not
read it over).
[Note 4:; add:]
1904, Terr. v. Boyd, 16 Haw. 660, 665 (the witness may be cross-examined to a document
shown him, without necessarily filing it and making it evidence).
1904, Hanlon v. Ehrich, 178 N. Y. 474, 71 N. E. 12 (like Romertze v. Bank). 1912, Larkin
«. Nassau Electric R. Co., 205 N. Y. 267, 98 N. E. 465 (may be introduced " in the regular
course of the trial").
Distinguish also the question whether the whole may be put in evidence by the opponent
(post, § 2113).
[Note 4, at end ; add a new par. :]
Of course the document must be otherwise proved, if the witness does not admit its execution :
1910, Belskis v. Dering Coal Co., 246 111. 62, 92 N. E. 575 (here the document contained
additions which the witness denied he had signed).
276
PRODUCTION OF DOCUMENTARY ORIGINALS § 1263
§ 1262. Same : Rule as applied to Depositions, etc.
[Teset, p. 1526, last line ; add a new note 9 :]
' Distinguish also the question whether the whole of a document may be put in evidence
by the opponent (^post, § 2113).
[Note 8; add:]
Presumably the foregoing application of the rule in The Queen's Case would no longer be
law in England, since St. 28 & 29 Vict. c. 18, § 5 (quoted post, § 1263, n. 1) abolished the rule
for criminal cases.
§ 1263. Same : Jurisdictions recognizing the Rule, etc.
[Note 3; add:]
Alta. St. 1910, 2d sess.. Evidence Act, c. 3, § 20 (like Eng. St. 1854, c. 125, § 24).
Ont. St. 1909, c. 43, § 17 (Uke R. S. 1897, c. 73, § 17).
Sask. St. 1907, c. 12, Evidence Act, § 29 (like Eng. St. 1854, c. 125, § 24).
Yukon St. 1904, c. 5, § 42 Gike Eng. St. 1854, c. 125, § 24).
[Note 5; add:]
1911, Birmingham R. L. & P. Co. v. Bush, 175 Ala. 49, 56 So. 73l'(Gunter v. State followed).
1910, People v. Bond, 13 Cal. App. 175, 109 Pac. 150 (former testimony before the coroner;
showing the transcript not required).
1909, Stewart v. State, 58 Fla. 97, 50 So. 642 (affidavit required to be shown).
1905, Washington v. State, 124 Ga. 423, 52 S. E. 910 (rule applied to a letter).
1905, Warth v. Loewenstein, 219 111. 222, 76 N. E. 378 (questions as to statements made by
the witness in a deposition not introduced, allowed). 1910, Belskis ii. Dering Coal Co., 246
111. 62, 92 N. E. 575 (question held proper, though the witness had signed a statement which
was to be offered as the self-contradiction). i
1908, Martin v. Hoffman, 77 Kan. 185, 93 Pac. 625 (questions on a letter identified by the
witness, excluded, unless perhaps for testing credibility).
1914, Whisner v. Whisner, — Md. — , 89 Atl. 393 (rule applied).
1904, McDonald v. Bayha, 93 Minn. 139, 100 N. W. 679 (cross-examination of the plaintiff
to letters, without showing them, held improper ; the Court is so far ignorant of the impolicy
of its own rule that it stigmatizes the trial Court's procedure as "inquisitorial").
1913, Ebert v. MetropoUtan St. R. Co., 174 Mo. App. 45, 160 S. W. 34 (deposition; a prior
written statement not having been shown to the deponent, the statement was excluded).
1905, Villineuve v. Manchester St. R. Co., 73 N. H. 250, 60 Atl. 748 (Haines v. Ins. Co.
followed ; here a signed unsworn statement ; the practice here sanctioned seems a poor one).
1905, State v. Hayes, 138 N. C. 660, 50 S. E. 623 (rape ; defendant allowed to cross-examine
prosecutrix as to the contents of her letter in defendant's possession ; decided on the theory
of § 1252, ante).
1910, State v. Goodager, 56 Or. 198, 106 Pac. 638 (written statements must be shown;
but a report of former testimony, not signed by the witness cannot be used for the purpose ;
this kind of ruling makes it very difficult for the party desiring to probe a liar).
1909, Kann v. Bennett, 223 Pa. 36, 72 Atl. 342 (rule in The Queen's Case appUed ; no prec-
edents cited, no consideration of the controversy).
1908, Jones v. U. S., 9th C. C. A., 162 Fed. 417, 430 (the defendant having cross-
examined the prosecution's witness by reading parts of a former sworn statement, the
prosecution was allowed to put in the whole, apparently on the theory that this was
merely permitting what the defendant should originally have been required to do by the
present rule ; but of course it was also justifiable, irrespective of the present rule, on the
principle of § 2115). 1909, Richards v.' U. S., 8th C. C. A., 175 Fed. 911, 925, 942 (rule
assumed to apply, in both majority and dissenting opinions).
277
§ 1263 PRODUCTION OF DOCUMENTARY ORIGINALS
[Note 5 — continved]
1909, Eads v. State, 17 Wyo. 490, 101 Pac. 946 (in asking about an impeaching document,
"the cross-examiner may accept an affirmative answer as proof of the contents," without
production).
§ 1267. Kinds of Copies ; Is a Written Copy the Exclusive Form, etc.
\Note 1; add:]
1908, Rogers v. Clark Iron Co.> 104 Minn. 198, 116 N. W. 739 (Federal land-patent).
Compare here the cases cited post, § 1273, n., that a proceeding for judicial restoration
«f a lost record is not the exclusive means of proof, the principle is related to those of §§ 1347
and 1660 post, and is there again referred to. ,
[ATofeb; add:]
Can. : 1903, Stewart v. Walker, 6 Ont. L. R., 495, 501 (Sugden v. St. Leonards followed ; but
some corroboration is required).
§ 1268. Is a Written Copy conditionally Preferred, etc.
{Note A; add:]
1909, Robinson v. Singerly P. & P. Co., 110 Md. 382, 72 Atl. 828 (American rule as stated
by Greenleaf, adopted).
[Note 5; add:]
1906, State v. Harrington, 198 Mo. 23, 95 S. W. 235, semhle (letter).
§ 1269. Same : Copy preferred for proving Public Records.
\Note 1, par. 1 ; add:]
1904, R. V. Drummond, 10 Ont. L. R. 546 (perjury; the indictment and judgment of the
ether trial must be evidenced by an exemplified or sworn copy, or certificate of substance
lunder Dom. Cr. C. § 691, and not by the clerk's minute book).
1908, Felix v. Caldwell, 235 111. 159, 85 N. E. 228 (destroyed probate decree evidenced by
recollection and the recitals of the administrator's deed, since "there was in existence no
other writing or memorandum").
[Note 1, par. 2 ; at the end, add:]
The extreme phrasing in Glos v. Holmes, 228 III 436, 81 N. E. 1064 (1907), that the correct-
ness of a sworn copy of records of a tax-sale in the county-clerk's office "could not be dis-
puted by oral evidence" must be understood in the light of the special case ; the ruling was,
in effect, merely that where the original record was in court, the sworn copy's correctness
was disputable only by the original, not by recollection-testimony.
[Note 2; add:]
1910, Russell V. State, 97 Ark. 92, 133 S. W. 188 (certified copy of public land plats, and
maps, etc., preferred to oral testimony).
1912, State ». Oden, 130 La. 598, 58 So. 351 (illegal liquor-selling ; by statute the collector's
•certificate of issuance of a Federal revenue license was admissible to prove such a license ;
the certificate held to be the "best evidence," so that the defendant's own admissions on
cross-examination could not be asked for ; this is a most unpractical ruling ; it is of the
kind that puts the law far away in the jungle of logical unrealities, where it has nothing to
<do with actual needs).
278
PRODUCTION OF DOCUMENTARY ORIGINALS § 1270
[Note 3; add:]
1906, People v. Christian, 144 Mich. 247, 107 N. W. 919 (oral testimony to a land-officer's
letter, admitted, though a copy of the press-copy in the land office could have been had ;
"there are no degrees in secondary evidence" ; no authority cited).
S. C. St. 1911, No. 63, p. 91 (amending § 32 of St. 1907, Feb. 16; "records of the original
books of the collector of internal revenue," showing payment of a U. S. liquor tax, may be
evidenced "by the oath of any one who may have inspected the same").
LA^ofe4; add:]
1907, Kennedy v. Borah, 226 111. 243, 80 N. E. 767 (whether preliminary proof of lack of a
certified copy of burnt records of a court should be required ; not decided). 1911, People
V. Cotton, 250 111. 338, 95 N. E. 283 (forged entry in a chattel mortgage acknowledged before
a justice ; to prove that the justice's lost docket did not contain a note of a certain chattel
in the mortgaged lot, the contents were allowed to be evidenced by oral recollection of the
justice, without preferring a copy made as a part of testimony before the master).
§ 1270. Same : Copy of Record of Conviction, etc.
[Text, p. 1542, at the end of the quotation from Clemens v. Conrad, add a new note 2o :]
^ The best opinion, discussing the principle and policy, is now that of Powers, J., in State
V. Knowles, 98 Me. 429, 57 Atl. 588 (1904).
[Note 5; add:]
Eng. : 1913, Mash v. Darley, [1914] 1 K. B. 1 (bastardy ; prior conviction for carnal inter-
course, evidenced by a police officer who had been present at the trial).
Canada : Dom. St. 1909, 9 Edw. VII, c. 82, § 101 (liquor license act ; previous convictions
provable "by the production of a certificate under the hand of the convicting justices or
police magistrate or of the clerk of the peace, without proof of his signature or official
character, or by other satisfactory evidence").
Alta. St. 1910, 2d sess., Evidence Act, c. 3, § 22 (like Eng. St. 1854, c. 125, § 25).
Ont. St. 1909, c. 43, § 19 (like R. S. 1897, c. 73, § 19). 1910, R. v. Graves, 21 Ont. 329,
346 (under St. 1909, 9 Edw. VII, c. 82, § 101, held that "the oral evidence of bystanders"
was not sufficient).
P. E. I. St. 1907, 7 Edw. VII, c. 3, § 25 (liquor offences; prior conviction provable by mag-
istrate's certificate, "or other satisfactory evidence").
Sask. St. 1907, c. 12, Evidence Act, § 30 (like Eng. St. 1854, c. 125, § 25).
Yukon St. 1904, c. 5, § 43 (like Eng. St. 1854, c. 125, § 25, substituting "any crime").
United States: 1906, Thrash v. State, 79 Ark. 347, 96 S. W. 360 (Vance v. State fol-
lowed).
1911, Turner v. State, 100 Ark. 199, 139 S. W. 1124 (rule of Vance v. State affirmed).
1904, McKevitt v. People, 209 111. 180, 70 N. E. 693 (copy of record required in criminal
cases). 1906, O'Donnell v. People, 224 111. 218, 79 N. E. 639 (Bartholomew v. People fol-
lowed). 1908, Clifford v. Pioneer Fireproofing Co., 232 111. 150, 83 N. E. 448 (in a civil
case, a copy is not required, but "unless admitted by the witness or the party," enough
must be proved "to show the jurisdiction of the court and a conviction," even where a copy
is used).
1909, Dotterer v. State, 172 Ind. 357, 88 N. E. 689 ("If answered affirmatively, what good
ground can there be for demanding the record ? " repudiating the doubt in Farley v. State,
supra).
1904, Bise «. U. S., 5 Ind. T. 602, 82 S. W. 921 (record required, to disqualify the witness ;
otherwise for mere impeachment).
1904, State v. Knowles, 98 Me. 429, 57 Atl. 588 (cross-examination to conviction, allowed,
as an application of common-law principles).
1905, Deck v. Baltimore & O. R. Co., 100 Md. 168, 59 Atl. 650 (what there was in the wit-
279
§ 1270 PRODUCTION OF DOCUMENTARY ORIGINALS
[Note 5 — continued]
ness' record that led an officer to arrest him, not allowed on cross-examination ; "the proper
evidence of such convictions should have been produced"; no autliority cited).
1907, Com V. Walsh, 196 Mass. 369, 82 N. E. 19 (the common law rule of this State, not
permitting the conviction to be proved orally by a witness, applies equally to a defendant
testifying on cross-examination; prior practice and rulings followed).
1908, State v. Gordon, 105 Minn. 217, 117 N. W. 483.
1905, State v. Heusack, 189 Mo. 295, 88 S. W. 21 (statute applied). 1905, State v. Forsha,
190 Mo. 296, 88 S. W. 754 (after the witness' admission of conviction for common assault,
the State was allowed to show a conviction for assault with intent to kill). 1905, State v.
Spivey, 191 Mo. 87, 90 S. W. 81 (rule applied to a defendant cross-examined). 1905;
State V. Woodward, l91 Mo. 617, 90 S. W. 90 (if the witness denies the conviction, the
record-copy must be produced, if further proof is desired).
1904, State v. Fox, 70 N. J. L. 353, 57 Atl. 270 (the witness may be asked as to conviction
of any other crime "without specifying time or place"). 1905, State v. Mount, 62 N. J. L.
365, 65 Atl. 259 (statute applied). 1909, Hill v. Maxwell, 77 N. J. L. 766, 73 Atl. 501
(statute applied to allow the question to the witness himself).
N. Y. St. 1909, c. 240, § 61, p. 408 (re-enacting P. C. § 714, now Consol. L. c. 88, § 2444).
1912, People v. Cardillo, 207 N. Y. 70, 100 N. E. 715 (the accused's confessions out of
court are not admissible to show prior convictions of crime; the Code prescribing the only
permissible modes).
1909, Com. V. Racco, 225 Pa. 113, 73 Atl. 1067 (defendant allowed to be questioned as to
former convictions; and a police officer allowed to testify to the defendant's admission
thereof, to impeach his denial).
1904, Gulf C. & S. F. R. Co. «. Johnson, 98 Tex. 76, 81 S. W. 4 (record required ; and this
must include the sentence, not merely the judgment on the verdict) . 1906, Grabill v. State, —
Tex. Cr. — , 97 S. W. 1046 (for disqualifying a witness, a copy of the record is required ; but
for impeachment, his answer on cross-examination suffices). 1907, Fannin v. State, 51 Tex.
Cr. 41, 100 S. W. 916 (defendant's oral extra-judicial admission of conviction, excluded).
1906, Bise v. U. S., 144 Fed. 374, C. C. A. (for disqualification of a witness, a copy of the
record is necessary; here applied for Indian Territory).
Wash. St. 1909, c. 249, p. 900, § 38 (may be shown "either by the record thereof, or a copy
of such record duly authenticated by the legal custodian thereof, or by other competent
evidence, or by his cross-examination").
1912, State v. Stone, 66 Wash. 625, 120 Pac. 76 (under Crim. Code 1909, § 37, Rem. & Ball.
Code, § 2290, the witness may be cross-examined without producing the record-copy;
"the rule stated in State v. Payne is no longer appUcable"). 1912, State v. Overland, 68
Wash. 566, 123 Pac. 1011 (same).
For the question whether identity o/ name suffices, without other evidence of identity
of persons, see post, § 2529.
§ 1271. Same : Copy of Foreign Statutory Law, etc.
[Note 3; add:]
N. So. : Merritt v. Copper Crown Co., 36 N. Sc. 383, 393 (West Virginia statute proved by
an admission).
[Note 4; add:]
1907, Cook V. Chicago R. I. & P. R. Co., 78 Nebr. 64, 110 N. W. 718 (witness to contents
of statutes of Idaho, no copy being offered, excluded).
N. C. Rev. 1905, § 1594 (like Code 1883, § 1338).
1912, Paterson's Estate, 22 N. D. 480, 134 N. W. 751 semble (an over-technical decision).
1907, Free v. Southern R. Co., 78 S. C. 57, 58 S. E. 952 (whether a North Carolina statute
can be evidenced by a North Carolina Supreme Court decision ; not decided).
280
PRODUCTION OF DOCUMENTARY ORIGINALS § 1275
§ 1272. Preferences as between Recollection- Witnesses.
[Note 1 ; add, under Accord:]
1906, Colton's Estate, 129 la. 642, 105 N. W. 1008 (see the citation ante, § 1244, n. 4).
1905, State ii. Rosenthal, 123 Wis. 442, 102 N. W. 49 (clerk of couit is not a preferred wit-
ness to a search of records).
§ 1273. Preference as between Diflerent Kinds of Written Copies, etc.
[Note 1, par. 1 ; add:]
1906, State v. Nippert, 74 Kan. 371, 86 Pac. 478 (Federal revenue records; an examined
copy admitted, the officer having refused to certify a copy). State v. Schaeflfer, 74 Kan.
390, 86 Pac. 477 (similar; general rule as to preference, not decided).
1904, Terry v. State, 46 Tex. Cr. 75, 79 S. W. 320 (U. S. coUector's records).
1906, Smithers v. Lawrence, 100 Tex. 77, 93 S. W. 1064 (certified copy, not preferred to
examined copy of land-office records).
[Note 2; add:]
1910, RusseU v. State, 97 Ark. 92, 133 S. W. 188 (under Kirby's Dig., §§ 3589-3594 public
land plats and maps etc. can be proved only by the originals or certified copies).
[Note 4; add:]
1910, Hughes v. Pritchard, 153 N. C. 23, 135, 68 S. E. 906, 69 S. E. 3 (homestead
appraisal).
§ 1275. Copy of a Copy ; Specific Rides of Preference.
[Note 5 ; add :]
N. C. Rev. 1905, § 569 (like Code 1883, § 428).
[Note 6; add:] ,
Okl. St. 1908, c. 75, p. 655, Art. II, § 5 (re-records from territorial to state records).
[NoU8; add:]
N. C. Rev. 1905, § 2661 (Uke Code 1883, § 3662).
1904, New York, N. H. & H. R. Co. v. Horgan, 26 R. I. 448, 59 Atl. 310 (certified copy of
an authorized record-copy of a dilapidated record of a town-meeting vote, admitted).
[Note 11, par. 1; add:]
1906, Mansfield v. Johnson, 51 Fla. 239, 40 So. 196 (certified copy from the record of H.
county court, of a judgment there recorded on certified copy from D. county court, ad-
mitted). , s
Fla. St. 1913, c. 6482, p. 296, June 7 (certified copies of deeds re-recorded in other counties
to be admissible).
N. H. St. 1913, c. 137, § 3 (central office of copies of ancient records ; certified copy under
seal of State by the Secretary of State to be evidence).
[Note 12; add:]
Ark. St. 1907, No. 77, p. 171, Mar. 12, § 5 (certified copy of restored burnt records of Gar-
land Co., admissible).
Cal. St. 1906, Spec. Sess., c. 55, p. 73, June 61, § 1.
Nev. St. 1909, c. 77, p. 142, § 1 (county records lost or destroyed ; provision for use of cer-
tified copies of recorded copies).
281
§ 1275 PRODUCTION OF DOCUMENTARY ORIGINALS
[Note 14; add':]
S. C: 1909, Pineland Club v. Robert, 4th C. C. A., 170 Fed. 341 (a record of a certified
copy of a will, not admitted, under S. C. St. 1866, Dec. 20, the probate of the will being
defective and the existence of the will not being otherwise established ; the principle of
§§ 1658 and 2110 being thusnot satisfied; Howard v. Quattlebaum distinguished.)
§ 1278. Witness to Copy must have Personal Knowledge of Original.
[Note 1; correct:]
Lester v. Blackwell should be : Laster v. Blackwell, 128 Ala. 143, 30 So. 663, 133 Ala. 337,
32 So. 166.
[Note 1 ; add :]
1910, Lacy v. Meador, 170 Ala. 482, 54 So. 161 (one L., an illiterate, had dictated a letter
to one E., who wrote it; a witness who had heard some one read aloud the letter was ex-
cluded; citing the text above).
1910, Guinasso's Estate, Guinasso v. Arata, 13 Cal. App. 518, 110 Pac. 335 (one who heard
B. read a will aloud, not competent).
§ 1280. Sundry Distinctions (Press-Copies, etc.).
[Note 2 ; add a new par. :]
The kngth of time elapsing between seeing the original and making the copy is immaterial ;
it is then at least as good as recollection-testimony :
1913, Walter v. Calhoun, 88 Kan. 801, 129 Pac. 1176.
§ 1281. Witness must be called, etc.
[Note 1 ; add :]
1906, Hall V. Callingham, 74 N. J. L. 211, 65 Atl. 123 (purporting copy of a letter, not veri-
fied by any witness, excluded).
§ 1290. Attesting- Witness Rule; Kind of Docimient covered, etc.
[Note 1, 1. 2; correct:]
For "the next note," read "note 3, infra."
[Note 3; add:]
Alta. St. 1910, 2d sess., Evidence Act, c. 3, § 52 (like Eng. St. 1854, c. 125, § 26, up to the
semicolon). 1913, Nichols & S. Co. v. Skedanuk, Alta. S. C, 11 D. L. R. 199 (mortgage
of land under Land Titles Act ; whether it is a document required to be attested and thus
the attesting witness must be called, not decided).
Ont. St. 1909, c. 43, § 51 (like R. S. 1897, c. 73, § 54).
Yukon St. 1904, c. 5, § 32.
[Notei; add:]
1904, Ballow v. Collins, 139 Ala. 543, 36 So. 712 (under Code, § 1797, the maker's testimony
suffices ordinarily ; but where attestation is required for the validity of execution under
Code, § 2151, — here, an illiterate's mortgage, signed by mark, — the attestation also must
be proved by the maker ; as to whether an illiterate's mark is identifiable, see ante, § 693) ;
Code 1897, § 1797 (quoted post, § 1299, n. 3).
1906, Castor v. Bernstein, 21 Cal. App. 703, 84 Pac. 244 ("The Code makes no distinction
in rank between the various modes in which a writing may be proved" ; here said of an
attested release).
282
PREFERRED ATTESTING WITNESSES § 1299
[Noie 4 — continued]
1913, Kaeo i. Ozaki, 21 Haw. 633 (assignment of a claim ; witness need not be called).
N., Y. St. 1909, c. 65, p. 22, Feb. 17 (places St. 1883, c. 195, § 1, in C. C. P. as § 9616).
N. C. Rev. 1905, § 329, Code 1883, § 57 (special ryle provided for proving a copy of a lost
probated will).
S. D. : Stats. 1899, § 533 ("The execution of witnessed instruments, except wills, may be
proven in the same manner as the execution of unwitnessed instruments").
1905, Mississippi L. & C. Co. v. Kelly, 19 S. D. 577, 104 N. W. 265 (statute applied to a
witnessed note; the statutes for proof to a recording officer held not applicable).
1907| Boswell «. First National Bank, 16 Wyo. 161, 92 Pac. 624 (power of attorney; not
decided).
[NoteQ; add:]
Compare the following : 1909, Eadie v. Chambers, 9th C. C. A., 172 Fed. 73 (whether attes-
tation is requisite to validity between the parties).
§ 1292. Who is an Attesting Witness.
{Note 2; add:]
Whether the witness is competent or credible by the substantive law, so as to affect the va-
lidity of the attestation, is also a different question (post, § 1510, n. 4).
[Note 6; add:]
Accord: on the latter point decided in Lavretta v. Holcombe, Ala., there is a series
' of prior cases in that State.
Undecided: 1907, Gump v. Gowans, 226 111. 635, 80 N. E. 1086 (notary).
Contra: 1903, Kelly v. Moore, 22 D. C. App. 9 (collecting cases).
For the rule of substantive law as to the sufficiency, for purposes of attestation, of a de-
fective or unauthorized certificate of acknowledgment, see Keely v. Moore, 196 U. S. 38,
25 Sup. 169 (1904), collecting the cases.
[Text, p. 1576 ; add a new par. (6) :]
(6) An illiterate person may be an attesting witness, subscribing by mark ;
but the proof of the mark may raise a difficulty (ante, § 693, n. 2).
§ 1297. Execution not disputable because of Opponent's Claim, etc.
[Note 1 ; add :]
1810, Pearce v. Hooper, 3 Taunt. 60 (cited post, § 1298, n. 2).
1905, McBrayer v. Walker, 122 Ga. 245, 50 S. E. 95 (administrator of grantee, claiming under
the deed ; the grantor allowed to use without authentication an admission of usury indorsed
by the grantee on the deed) .
§ 1299. Attestor preferred to any Third Person, etc.
[Note 2; add:]
1913, Swindell v. Ford, — Ala. — , 63 So. 651.
[Note 3; add:]
1904, Ballow v. Collins, 139 Ala. 543, 36 So. 712 (statute applied; see the citation ante,
§ 1290, n. 4).
1904, Vizard v. Moody, 119 Ga. 918, 47 S. E: 348 (statute applied).
283
§ 1300 PKEFERRED ATTESTING WITNESSES
§ 1300. Attester preferred to Oppoilent's Extra-judicial Admissions.
[Note 2; add:]
1903, Sledge v. Singley, 139 Ala. 346, 37 So. 98 (Code, § 1797, quoted ante, § 1299, n. 3,
applies only to testimony on the stand or by deposition ; hence the alleged maker's extra-
judicial admissions do not dispense with calling the attester of a deed).
1905, Lewis v. Glass, — Ala. — , 39 So. 77 (admissions excluded).
§ 1302. Attester need not Testify Favorably.
[Note 1; add:]
1910, Mordecai v. Canty, 86 S. C. 470, 68 S. E. 1049 (failure to testify to'sanity).
1904, Schouweiler v. McCaull, 18 S. D. 70, 99 N. W. 95 (mortgage).
In Illinois, by a queer forgetfulness of the present principle, the words of the local
statute were for a time made to reach a contrary result : 1906, Greene v. Hitchcock, 222
111. 216, 78 N. E. 614 (by Rev. St. c. 148, § 2, quoted post, § 1304, n. 6, the oath of two
attesting witnesses "that they were present and saw the testator sign, etc.," "shall be
sufficient proof of the execution" ; in this case, the will bore a full attestation clause, but
one of the attesters could testify only that he did not remember whether he saw the testa-
trix sign, but that he would not have signed it except in her presence nor have let her sign
it except in his presence, etc. ; this was held insufficient, ignoring the present principle and
citing no authority whatever, and then invoking the peculiar local rule of § 1303, n. 3,
post, to exclude all other testimony ; the result is to establish an unjust rule of hardship,
contrary to two centuries of settled law).
But the Tilling in Greene v. Hitchcock was within a year practically repudiated. 1907,
Mead v. Presbyterian Church, 229 III. 526, 82 N. E. 371 (the opinion does not mention
Greene «. Hitchcock, though the briefs cited it). 1908, Schofield v. Thomas, 236 111. 122,
86 N. E. 122 (issue whether the testatrix was present at the attesters' signing; the attesters
testified not, but another person testified that she was ; due attestation was not found ;
but the opinion points out that the attesters' negative testimony was not of itself fatal, if
other testimony to due attestation had been believed; approving Gould v. Seminary, 189
III. 282, 59 N. E. 536 ; not mentioning Greene v. Hitchcock, supra, but effectually repudiat-
ing it).
[Note 2; add:]
1906, Shapter's Estate, 35 Colo. 578, 85 Pac. 688.
1913, Brock v. Brock, 140 Ga. 590, 79 S. E. 473 (Gillis v. Gillis followed).
1907, Carmical v. Carmical, 32 Ky. L. 171, 104 S. W. 1037.
1909, Newell v. White, 29 R. I. 343, 73 Atl. 798.
1911, Merck v. Merck, 89 S. C. 347, 71 S. E. 969.
1878, Meurer's Will, 44 Wis. 392, 401.
N. Y. St. 1914, c. 443 (amending C. C. P. § 2612, surrogates' courts; "if all the subscrib-
ing witnesses to the will be dead or incompetent by reason of lunacy or otherwise to testify,
or unable to testify, or are absent from the State and their testimony has been dispensed
with, ... or if a subscribing witness has forgotten the occurrence or testifies against the
execution of the will, or was not present with the other witness at the execution of the will,
the will may nevertheless be established"; remainder quoted post, § 1320).
§ 1303. Same : Discriminations, etc.
[Note 3; add:]
1904, O'Brien v. Bonfield, 213 111. 428, 72 N. E. 1090 (rule held constitutional). , 1905,
Senn v. Greundling, 218 111. 458, 75 N. E. 1020. 1905, Barry's Will, 219 III. 391, 76 N. E.
577. 1906, Greene v. Hitchcock, 222 111. 216, 78 N. E. 614. 1906, Stuke v. Glaser, 223 111.
284
PREFERRED ATTESTING WITNESSES § 1312
[Note 3 — continued]
316, 79 N. E. 105 (meaning of the proviso as to "fraud," determined). 1909, Dean v.
Dean, 239 III. 424, 88 N. E. 149.
§ 1304. Number of Attesters required to be Called.
[Note 6; add:]
1906, Greene v. Hitchcock, 222 111. 216, 78 N. E. 614 (on a grant of probate, the two attest-
ers must testify).
Kan. St. 1905, c. 526, § 1 (the Court shall cause "the witnesses to such will" to attend and
be examined).
N. Y. St. 1914, c. 443 (replacing C. C. P. § 2618 by § 2611 ; "two at least" must be pro-
duced, "if so many are within the State and competent and able to testify" ; where one has
been for cause dispensed with, "and one subscribing witness has been examined," the will
may be probated on the latter's testimony alone).
N. C. Rev. 1905, § 3127 (like Code 1883, § 2148). 1906, Steadman v. Steadman, 143 N. C.
345, 55 S. E. 784 (rule applied to a will dating 1857).
Okl. St. 1909, c. 41, p. 641, § 4 (amending Stats. 1893, § 1189, by adding proviso that the
witness prove all particulars of due execution and the testator's sanity).
§ 1310. Statutory Enumerations of Causes of Unavailability.
[Note 1; add:]
N. Y. St. 1911, c. 105, p. 163 (amending C. C. P. § 2540, in other respects). St. 1913, c. 412,
p. 871 (amending C. C. P. § 2618). St. 1914, c. 443 (surrogates' courts ; replacing C. C. P.
§§ 2618-'2670, 2639, 2540 by a new C. C. P. § 2612 ; testimony of a subscribing witness may
be dispensed with in case of "death, absence from the State, incompetency by reason of
lunacy or otherwise/' or when he "cannot with due diligence be found within the State, or
cannot be examined by reason of his physical or mental condition" ; surrogate may order
testimony taken by commission if the witness "is absent from the State and his testimony
can be obtained with reasonable diligence").
N. C. Rev. 1905, § 3127 (like Code 1883, § 2148, adding "or cannot after due diligence be
found within the State").
§ 1311. Causes of Unavailability; (2) Ancient Document.
[Note 2; add:]
1904, O'Neal v. Tennessee C. I. & R. Co., 140 Ala. 378, 37 So. 275.
§ 1312. Same : (3) Absence from Jurisdiction.
[Note 2; add:]
1906, Terry v. Broadhurst, 127 Ga. 212, 56 S. E. 282 (attendance at school in another
State, sufficient).
1909, Worman v. Seybert, 78 N. J. L. 176, 73 Atl. 529 (residence in Philadelphia, held to suffice).
[Note 6; add:]
1904, Schouweiler v. McCauU, 18 S. D. 70, 99 N. W. 95 (one witness called, the other out of
the county ; other testimony then allowed).
[iVote 8, par. 2, 1. 2 ; add:]
1907, Cuff V. Frazee S. & C. Co., 14 Ont. L. R. 263 (former witness now absent ; inquiries
and replies, excluded as evidence of absence, but considered as evidence of inability to find)
and the cases cited akte, §§ 664, 1196.
285
§ 1312 PREFERRED ATTESTING WITNESSES
[Note 10; add:]
1907, Boswell v. First National Bank, 16 Wyo. 161, 92 Pac. 624 (residence and attestation
in other States, with other evidence, held to raise the presumption of absence, so as to
exempt from proof of the witnesses' signature).
§ 1313. Same : (4) Absence in Unknown Parts.
[Note 2; add:]
1910, Thompson v. King, 95 Ark. 549, 129 S. W. 798.
[Note 5, par. 2; add:]
and the cases cited ante, §§ 664, 1196, post, § 1725.
§ 1316. Same : (9) Incompetency, etc.
[iV^oie 4, last line ; add:]
For an ilUterate attester, see ante, § 693, n. 2.
§ 1320. If the Witness is Unavailable, must his Signature be proved, etc. ?
[Note 2; add:]
N. Y. St. 1914, c. 443 (replacing C. C. P. § 2620 by a new C. C. P. § 2612; surrogates'
courts ; on failure of testimony, etc., as quoted ante, § 1302, the will may nevertheless be
established, etc., as in the original C. C. P. § 2620, supra). ,
1913, Swindell v. Ford, — Ala. — , 63 So. 651 (deed; proof of attestation required).
N. C. Rev. 1905, § 3127 (like Code 1883, § 2148; adding, "In all cases where the testator
executed the will by making his mark, and where any one or more of the subscribing wit-
nesses are dead or reside out of the State or are insane or otherwise incompetent to testify,
it shall not be necessary to prove the handwriting of the testator, but proof of the handwrit-
ing of the subscribing witness or witnesses so dead," etc., shall sufSce).
1907, Boswell v. First National Bank, 16 Wyo. 161, 92 Pac. 624 (not decided ; cited more
fully, ante, § 1312, n. 10).
§ 1326. Magistrate's Report of Accused's Statement.
[Note 1; add:]
111. St. 1907, May 17, p. 213 (re-enacting this part of c. 32, § 18, supra).
N. H. St. 1905, c. 60, amending St. 1903, c. 134 (the testimony before a medical referee as
coroner "shall be reduced to writing").
N. C. Rev. 1905, § 3196 (like Code 1883, § 1147).
Rev. 1905, § 3193 (like Code 1883, § 1150).
[NoUZ; add:]
Compare the comments of Mr. Gulson, in his treatise cited post, § 1349, n. 1.
[Note A; add:]
1910, Davis v. State, 168 Ala. 53, 52 So. 939 (oral testimony not admissible, unless magis-
trate's report is accounted for).
1909, State v. Winter, 83 S. C. 153, 65 S. E. 209.
§ 1327. Same : Magistrate's Report not required, if lost or not taken.
[NoteZ; add:]
1910, People v. Luis, 158 Cal. 285, 110 Pac. 580 (here a confession in answer to the district
attorney).
286
PREFERRED WITNESSES § 1330
§ 1328. Written Ezamination usable as Memorandum, etc.
[Note 2; add:]
1913, State v, Harris, 74 Wash. 60, 132 Pac. 735, semble.
[Note 3; add:]
Accord: 1906, Lowe v. State, 125 Ga. 55, 53 S. E. 1038, semble.
§ 1329. Magistrate's or Coroner's Report of Witness' Testimony.
[Note 2; add:] ■
Can. : 1905, Farlinger v. Thompson, 37 Sup. 513, 534 Cexamination of a debtor).
[Noted; add:]
1905, Sanford v. State, 143 Ala. 78, 39 So. 370.
1904, McKinney v. Carmack, 119 Ga. 467, 46 S. E. 719 (neither committing magistrate's
nor coroner's report is preferred, where the testimony is used in impeachment ; prior cases
not cited).
1905, Green v. State, 124 Ga. 343, 52 S. E. 431 (coroner's report of testimony, not preferred).
1905, Briggs v. People, 219 111. 330, 76 N. E. 499 (coroner's minutes of testimony need not
be used; no authority cited).
[Note 5; add:]
1906, State v. Thompson, 116 La. 829, 41 So. 107 (the magistrate's report of the testimony
being excluded for irregularity, the testimony of one who heard the former testimony was
received).
[Note 6; add:]
1914, Bennett v. State, — Fla. — , 63 So. 842.
§ 1330. Report of Testimony at a Former Trial.
[Note 1, par. 1 ; add:]
1911, McRorie v. Monroe, 203 N. Y. 426, 96 N. E. 724.
The same point is implied in many of the rulings cited post, § 2098 (whether the precise
words must be proved).
[Note 2; add:]
'1905, Petty v. State, 76 Ark. 515, 89 S. W. 465 (the witness may read his memorandum to
the jury ; of course ; it is curious that a Court should dignify such an objection by noticing
it).
1904, State v. Harmon, 70 Kan. 476, 78 Pac. 805.
1904, State v. Wooh-idge, 45 Or. 389, 78 Pac. 333.
1906, State v. Martin, 47 Or. 282, 83 Pac. 849 (here because the stenographer could not
verify the completeness and accuracy of the report).
[Note 3 ; add, under Not Required :]
1906, Meyer v. Foster, 147 Cal. 166, 81 Pac. 402 (not preferred to oral testimony from
memory).
1905, Miller v. People, 216 111. 309, 74 N. E. 743 (official stenographer's report; "we have
no statute giving any special weight to stenographic notes").
1908, Studabaker v. Taylor, 170 Ind. 498, 83 N. E. 747.
1911, State V. Kines, 162 la. 240, 132 N. W. 180.
1906, Austin v. Com., 124 Ky. 55, 98 S. W. 295 (cited post, § 1669).
287
§ 1330 PREFERRED WITNESSES
[Note 3 — continued]
1911, McRorie B. Monroe, 203 N. Y. 426, 96 N. E. 724.
1905, Harmon v. Terr., 15 Okl. 147, 79 Pac. 765 (official report, not preferred to the stenog-
rapher's testimony on the stand from his carbon copy).
1905, Wells V. Chase, 126 Wis. 202, 105 N. W. 799 (a perverse ruling, excluding the official
stenographer's sworn verification of his notes on the stand, because they were not "certified "
by him under Rev. Sts. 1898, § 4141, cited post, § 1669, which declares his certified minutes
admissible without calling him in person ; the object of the statute was merely to make the
minutes admissible without calling him, and his sworn testimony was of course at least
as good as his certificate ; here the Court, citing no authority, turned the abundant caution
of the trial counsel into an error).
[Note 3; add, under Required:]
1904, People v. Buckley, 143 Cal. 375, 77 Pac. 169 (under P. C. § 869 ; cited post, § 1669, n. 2).
1905, Estes v. Missouri P. R. Co., Ill Mo. App. 1, 85 S. W. 909 (citing none (of these cases).
[Note 3 ; add, at the end :]
The proper method is exemplified in State v. Fetterly, 33 Wash. 599, 74 Pac. 810 (1903).
The following doubt is unnecessary : 1904, People v. Lewandowski, 143 Cal. 574, 77
Pac. 467 (the witness having identified a person in his former testimony by saying, "There
isone;thatfellow," and pointing, thestenographerwasoffered to identify thenow defendant
as the person pointed out; the Court remarks, "There is certainly much force in the con-
tention that the statutory deposition cannot be thus added to " ; on the contrary, there is no
reason for doubting that it can be thus supplemented).
§ 1331. Deposition taken de bene esse.
[Note 1; add:]
Contra, and on this point preferable. 1904, State v. Woolridge, 45 Or. 389, 78 Pac. 333
(cited post, § 1349, n. 12 ; collecting authorities).
§ 1332. Dying Declarations, and other Extra-judicial Statements.
[Note 4; add:]
1910, People «. Luis, 158 Cal. 285, 110 Pac. 580 (confession).
§ 1335. Official Certificates.
[Note 1, par. 2^ under Contra, add:]
The above Louisiana doctrine has now been abandoned : 1903, State v. Menard, 110 La.
1098, 35 So. 360.
1906, State v. Romero, 117 La. 1003, 42 So. 482.
[Note 2, first part ; add :]
1913, Com. V. Borasky, 214 Mass. 313, 101 N. E. 377 (record of autopsy, not preferred to
testimony of operating physician).
§ 1339. Sundry Preferences for Eye-Witnesses, etc.
[Note 4:; add:]
1905, Washington v. State, 143 Ala. 62, 39 So. 388 (forgery).
1910, McCray v. State, 134 Ga. 416, 68 S. E. 62 (magistrate's signature on a warrant, the
magistrate, though present, held not a preferred witness to the signature).
288
PREFERRED WITNESSES § 1347
[Note 7; add:]
Ind. St. 1905, p. 584, § 238 (foregoing statute re-enacted).
[Note 8; add:]
1907, Forrester v. Hurtt, 18 Haw. 256 (land location; surveyor not preferred).
[Note 10; add:]
1910, Stewart v. Sloss-Sheffield S. & I. Co., 170 Ala. 544, 54 So. 48 (account-books do not
exclude testimony of one having independent knowledge).
Compare the useful remarks of Mr. Gulson, in his treatise cited post, § 1349, n. 1.
§ 1347. Cases involvmg the Efiect of Judgments, etc.
[Note 1; add:]
1910, Chantangco v. Abaroa, 218 U. S. 476, 31 Sup. 34 (where it is discouraging to find this
Court discussing a judgment-bar in terms of its being "admissible in evidence").
The use of other judgments for strictly testimonial purposes needs much liberalizing.
The principal instances are :
(1) Using a judgment of conviction of a principal in larceny, on the trial of the accessory ;
some cases are collected post, § 1388, n. 6, par. 3.
(2) Using a judgment of conviction to impeach a wiiness; this is unquestioned : ante,
§§ 980, 987.
(3) Simdry uses :
Excluded: 1911, Lillie v. Modem Woodman, 89 Nebr. 1, 130 N. W. 1004 (beneficiary who
had murdered her husband; the judgment in the criminal case held not admissible; the
opinion declares this to be " fundamental and elementary," and it doubtless is, as matter of
law ; nevertheless, it reveals an instance where some of our fundamental law is fundamental
nonsense).
Admitted: 1910, In re Crippen, [1911] 1 P. 108 (appUcation of a convicted felon, or his
representative, to establish claim resulting from his own crime; conviction admissible).
1913, Mash v. Darley, [1914] 1 K. B. 1 (In re Crippen approved ; here, on a bastardy com-
plaint, the defendant's conviction for carnal intercourse with the complainant was re-
ceived).
1908, Sheibley v. Fales, — Nebr. — , 116 N. W. 1035 (libel on S., charging a defalcation as
county officer ; judgment against S. in a suit by the county, admitted, on the theory that
defendant, as a resident taxpayer, was privy to the other suit).
[Note 3, par. 2 ; add :]
1905, Chattanooga N. B. & L. Ass'n v. Vaught, 143 Ala. 389, 39 So. 215.
1911, Huston V. Smith, 248 111. 396, 94 N. E. 63.
1904, Hall V. Hall, 118 Ky. 656, 82 S. W. 269.
1901, Johnson Lumber Co. v. Leonard, 145 N. C. 339, 59 S. E. 134.
1910, Veeder v. Gilmer, 103 Tex. 458, 129 S. W. 595.
The rule for proving the incorrectness of the certificate of examination by "clear and con-
vincing evidence," instead of by a "mere preponderance" is a rule for measure of proof
(post, § 2498).
[Note 4 ; add :]
1908, Hilt V. Heimberger, 235 111. 235, 85 N. E. 304.
[Note 6; add:]
1309, Bayeux v. Beryhale, Maitland's Yearbooks, II, 110, 3 Edw. II, No. 15 (Selden Soc.
vol. XIX) (the bishop's certificate "suffices for ever" to prove a man legitimate).
289
§ 1347 PREFERRED WITNESSES
[Note 7; add:]
1908, Rogers v. Clark Iron Co., 104 Minn. 198, 116 N. W. 739.
1906, Kennedy v. Dickie, 34 Mont. 205, 85 Pac. 982 (citing cases).
§ 1349. Magistrate's Report of Testimony.
[Note 1; add:]
Mr. J. R. Gulson, in his treatise on Philosophy of Evidence (1905), at §§ 392-426, analyzes
these problems in a careful and enlightening manner.
[Note 2; add:]
1905, Bell V. State, — Miss. — , 38 So. 795 (Wright v. State approved).
[NoteS; add:]
1906, Willis V. U. S., 6 Ind. Terr. 424, 98 S. W. 147 (under a statute requiring the magistrate
to make only a "general" statement in writing, the testimony of witnesses who heard is
admissible).
1910, People v. Giro, 197 N. Y. 152, 90 N. E. 432.
[Note 5, par. 1 ; add :]
1904, State v. Busse, 127 la. 318, 100 N. W. 536, semble (a confession before a sheriff, written
down by a bystander, read to the defendant, sworn and signed by him) ; 1905, State v.
Usher, 126 la. 287, 102 N. W. 101 ("Such we conceive to be the rule," citing State v. Busse).
[Note 8; add:]
1910, R. V. Prasiloski, 15 Br. C. 29 (perjury ; statements made by the witness, allowed to be
orally proved, the magistrate not having purported to take down his entire testimony).
[Note 9 ; add, under Accord :]
1904, Godfrey v. Phillips, 209 111. 584, 71 N. E. 19 (clerk's certificate of testimony of witnesses
at probate of a will, under Rev. St. c. 148, § 7, cannot be contradicted as to the date by the
clerk).
1906, State v. Jennings, 48 Or. 483, 87 Pac. 524 (but the coroner was here allowed to prove
the witness' oral statement, to impeach him, because the witness denied the correctness of
the signed written report).
[Note 9 ; add, under Contra:]
1909, State v. Hooper, 151 N. C. 646, 65 S. E. 613 (here the justice had only made notes).
[Note 12; add:]
Whether perjury may be committed in testifying by deposition where the deposition is not
perfected so as to be admissible, is in theory a different question ; and if the oral utterances
constitute perjury, they should be provable : 1904, State v. Woolridge, 45 Or. 389, 78 Pac.
333 (citing authorities).
§ 1350. Enrolled Copy of Legislative Act, etc.
[Note 2; add:]
1904, People v. McCuUough, 210 111. 488, 71 N. E. 602 ("the departure ... has never been
extended beyond an inspection of the journals").
[Note 3; add:]
1906, State v. Brodie, 148 Ala. 381, 41 So. 180.
1905, Andrews v. People, 33 Colo. 193, 79 Pac. 1031 (Speaker's testimony excluded). 1908,
290 V
PREFERRED WITNESSES § 1350
[Note 3 — continued]
Rio Grande S. Co. v. Catlin, 40 Colo. 450, 94 Pac. 323 (printed journals held conclusive
as against a report of a committee ; but the point is not cleariy stated in the opinion). 1912,
People V. Leddy, 53 Colo. 109, 123 Pac. 824 (entry of names of members voting).
1910, Rash V. Allen, Ross v. AUmond, 1 Boyce Del. 444, 76 Atl. 370.
1909, State v. Wheeler, 172 Ind. 578, 89 N. E. 1 (oral testimony not admissible against the.-
journals).
1904, State v. Armour Packing Co., — N. C. — , 47 S. E. 411.
[Note 4, par. (1) ; add:]
1904, Gibson v. Anderson, 131 Fed. 39, 42, 65 C. C. A. 277 (the "published statutes of the
U. S." showed that a joint resolution was approved May 27, 1902 ; plaintiff not allowed to
show that the true date was after June 1 ; unsound ; erroneously taking as authority Field
». Clark, U. S., infra, note 5).
1909, State v. Groves, 80 Oh. 351, 88 N. E. 1096 (enrolled statute prevails).
1906, Clagett v. Duluth, 143 Fed. 824, 827, C. C. A. (a printed official compilation of statutes,,
held not to prevail over "the original legislation").
[Note 4 ; add, at the end :]
(9) Whether the rule applies to the veto of a governor also: 1912, State ex rel. Crenshaw v.
Joseph, 175 Ala. 579, 57 So. 942 (failure to veto ). 1907, Powell v. Hayes, 83 Ark. 448,
104 S. W. 177. 1904, People v. McCuUough, 210 111. 488, 71 N. E. 602 ("Only record evi-
dence|can be introduced to show that the Governor filed the bill in the office of the Secretary
of State with his objections, in case the bill was vetoed by him ").
1905, Commissioners v. Warfield, 100 Md. 516, 60 Atl. 599 (here the Governor had signed
by mistake and afterwards erased his signature):
As to the fact or time of presentation of an enacted bill to the Governor for approval:
1913, Tuttle V. Boston, 215 Mass. 57, 102 N. E. 350. 1907, Wrede v. Richardson, 77 Oh. 182,
82 N. E. 1072 (the record of the Governor, kept pursuant to law, stating the presentation
of an act to him for approval on a specified date, is conclusive as to the fact of presentation).
[Note 5; add:]
1904, Yancy v. Waddell, 139 Ala. 524, 36 So. 733 (similar).
1913, Allen v. State, 14 Ariz. 458, 130 Pac. 1114 (referendum note; legislative record and
governor's proclamation, held conclusive).
1904, Rogers v. State, 72 Ark. 565, 82 S. W. 169 (tenor of the act; journals. consulted, citing
Chicot Co. V. Davies but no other of the thirteen foregoing cases). 1909, State v. Bowman,
90 Ark. 174, 118 S. W. 711 (Smithee v. Garth followed).
1905, Andrews v. People, 33 Colo. 193, 79 Pac. 1031 (whether a bill was read, printed, etc. ;
journals consulted).
1906, Adams v. Clark, 36 Colo, 65, 85 Pac. 642 (Lieutenant-governor's signatiu-e ; iJe Roberts
followed). 1912, People v. Leddy, 53 Colo. 109, 123 Pac. 824 (approving the Robertson
and Andrews cases).
1906, State v. Savings Bank, 79 Conn. 141, 64 Atl. 5 (whether a bill was duly passed ;
journals, etc., consulted ; here the Secretary of State had not recorded it ; no precedents
cited).
1910, Rash V. AUen^ Ross v. AUmond, 1 Boyce Del. 444, 76 Atl. 370 (number of votes;
journals consulted and held conclusive under a constitutional requirement for entry of vote
therein ; two judges diss.).
1906, Wade v. Atlantic L. Co., 51 Fla. 628, 41 So. 72 ("This Court is firmly committed to the
holding").
1910, De Loach v. Newton, 134 Ga. 739, 68 S. E. 708 (whether a majority vote was given ;
enrolled act conclusive; careful opinion by Fish, C. J.).
291
I 1350 PREFERRED WITNESSES
[Note 5 — continited]
1912, Neiberger ». McCuUough, 253 III. 312, 97 N. E. 660 (whether a bill was printed in
final foim before passage).
1894, State v. Boice, 140 Ind. 506, 513, 39 N. E. 64, 40 N. E. 113 (Evans v. Browne affirmed).
1894, Western Union Tel. Co. v. Taggart, 141 Ind. 281, 40 N. E, 1051 (Evans v. Browne
affirmed).
1897, Lewis v. State, 148 Ind. 346, 350, 47 N. E. 675 (Evans v. Browne affirmed).
1909, State v. Wheeler, 172 Ind. 578, 89 N. E. 1 (whether a bill was vetoed ; Evans v. Browne
followed ; but, for some reason not very clear, the Coml proceed nevertheless to examine
the jom'nals).
1906, Belleville v. Wells, 74 Kan. 823, 88 Pac. 47 (title of bills ; journals consulted).
1907, Missouri K. & T. R. Co. v. Simons, 75 Kan. 130, 88 Pac. 551 (constitutional majority ;
rule re-affirmed).
1913, Hamlett v. McCreary, 153 Ky. 755, 156 S. W. 410 (journal cannot be used even to
uphold validity of an act ; here, the enrolled bill was not signed by the Senate President).
1907, Cox V. Mignery, 126 Mo. App. 669, 105 S. W. 675 (rule applied to a municipal ordinance) .
1906, Palatine Ins. Co. v. Northern P. R. Co., 34 Momt. 268, 85 Pac. 1032 (due passage by
entering the vote, etc. ; journals consulted ; repudiating anything to the contrary in State
V. Long; cited supra, n. 4, par. 5). 1909, State v. Eripkson, 39 Mont. 280, 102 Pac. 336
(whether amendments were adopted; journals not consulted to determine contents of
bill).
1904, Colburn v. McDonald, 72 Nebr. 431, 100 N. W. 961 (like State v. Frank, supra).
1884, Passaic Co. v. Stevenson, 46 N. J. L. 173 (rule of Pangborn v. Young approved).
1890, Standard Underground C. Co. v. Att'y-Gen'l, 46 N. J. Eq. 270, 19 Atl. 733 (similar).
1907, Bloomfield v. Board, 74 N. J. L. 261, 65 Atl. 890 (that a bill was not approved within
sixty days after adjournment; enrolled attested statute not allowed to be overthrown
collaterally).
1896, New York & L. I. B. Co. v. Smith, 148 N. Y. 540, 42 N. E. 1088 (journals consulted, to
learn whether a two-thirds vote was received). 1906, Stickney's Estate, 185 N. Y. 107,
77 N. E. 993 (journals consulted to determine the constitutional quorum).
1904, State v. Armour Packing Co., — N. C. — , 47 S. E. 41 1 (triple reading after amendment,
etc. ; authentication is conclusive, except so far as the Constitution requires that certain
matters must appear in the journal). 1905, Bray v. WilUams, 137 N. C. 387, 49 S. E. 887
(private act; like Wilson v. Markley). 1904, Board v. Traveler's Ins. Co., 128 Fed. 817.
825, 63 C. C. A. 467 (first reading; following Carr v. Coke, N. C, supra, the journals were
consulted). 1906, Board v. Tollman, 145 Fed. 753, 764, C. C. A. (roll-call; N. C. rule
applied).
1911, Woolfolk V. Albrecht, 22 N. D. 36, 133 N. W. 310 (whether the enrolled is conclusive
as to an amendment's passage, not decided).
1904, Portland v. Yick, 44 Or. 439, 75 Pac. 706 (journals will be consulted only to determine
whether mandatory provisions there appear to have been observed).
1911, Jackson v. Weis & L. M. Co., 124 Tenn. 421, 137 S. W. 757 (State ». Algood affirmed).
1897, Missouri, K. & T. R. Co. v. McGlamory, 92 Tex. 150, 41 S. W. 466 (journals examined
to see whether an act took effect from date of passage). 1907, El Paso & S. W. R. Co. v.
Foth, 45 Tex. Civ. App. 275, 100 S. W. 171 (Williams v. Taylor followed).
1904, State v. Cahill, 12 Wyo. 225, 75 Pac. 433 (signing, etc., of a bill ; journals may be con-
sulted for facts constitutionally required to be recorded). 1904, Younger v. Hehn, 12 Wyo.
289, 75 Pac. 443 (preceding case approved).
[Note 11; add:]
1910, Murphy v. Chicago, Rock Island & P. R. Co., 247 111. 614, 93 N. E. 381 (rule applied
to a city ordinance, said to, have been passed for corrupt motives).
1906, State v. Terre Haute & I. R. Co., 166 Ind. 580, 77 N. E. 1077 (corruption).
292
PREFERRED WITNESSES § 1352
§ 1351. Certificate of Election.
[Note 4; add:]
1905, People v. Davidson, 2 Cal. App. 100, 83 Pac. 161.
1913, Rottner v. Buchner, 260 111. 475, 103 N. E. 454.
1904, Strebin v. Lavengoody 163 Ind. 478, 71 N. E. 494 (construing the law as to gravel-road
elections).
1906, Moorhead v. Arnold, 73 Kan. 132, 84 Pac. 742 (good opinion by Burch, J.).
1909, Com. V. Edgerton, 200 Mass. 318, 86 N. E. 768.
1908, Sheehan v. Manchester, 74 N. H. 445, 68 Atl. 872.
1909, People v. Wintermute, 194 N. Y. 99, 86 N. E. 818 (voting-machine).
1913, Moss V. Hunt, — Okl. — , 135 Pac. 282 (election oflBcers' testimony not receivable,
until the ballots are shown to be not identifiable or to have been probably tampered with).
1913, Quigley v. Phelps, 74 Wash. 73, 132 Pac. 738.
1905, Stafford v. Sheppard, 57 W. Va. 84, 50 S. E. 1016. 1906, Williamson v. Musick, 60
W. Va. 59, 53 S. E. 706.
§ 1352. Stindry Official Certificates, etc.
[Note 3; oM:]
1904, Markey v. State, 47 Fla. 38, 37 So. 53 (on a charge of perjury). Compare the similar
question for perjury in a deposition (ante, § 1331, n. 1).
[Note 4; add:]
1911, St. Louis I. M. &S. R. Co. v. Webster, 99 Ark. 265, 137 S. W. 1103, 1199 (St. 1905,
§ 4, p. 779, May 11, providing that if signature of a deposition is waived, "the officer . . .
must so certify," held not to forbid oral testimony to the waiver ; Wood, J., diss.)
1906, Sebesta v. Supreme Court, 77 Nebr. 249, 109 N. W. 166 (foreign notary's certificate
of taking of an affidavit, the certificate itself reciting only the fact of signature, not of oath-
taking, excluded, under statutory wordings ; here the ruling however is perversely technical,
because the affidavit itself recited that the signers were "each duly sworn upon their oaths ") .
For the conclusiveness of the purging oath of one charged with contempt, see post, § 1815,
n. 2.
[Note 5,1. 7; add:]
1906, Ford v. Ford, 27 D. C. App. 401, 408 (collecting the authorities).
1910, Orendorff v. Suit, 167 Ala. 563, 52 So. 744.
1904, Walker v. Shepard, 210 111. 100, 71 N. E. 422 (notary's certificate of acknowledg-
ment is not conclusive as to the grantor's mental capacity). 1909, Kosturska v. Bart-
kiewicz, 241 111. 604, 89 N. E. 657.
1909, People's Gas Co. «. Fletcher, 81 Kan. 76, 105 Pac. 34.
1907, Skajewski v. Zantarski, 103 Minn. 27, 114 N. W. 247.
1911, Bonvier v. Jaeger Coal Land Co. v. Sypher, C. C, 186 Fed. 644, 660.
1905, Swiger v. Swiger, 58 W. Va. 119, 52 S. E. 23.
[Note 5, at the end; add:]
For the measure of proof required in overturning such a certificate, see post, § 2498.
[Note9,pa,T.2; add:]
Otherwise to some extent, as to offences of seamen: Rev. St. 1878, § 4597, amended by
St. 1898, Dec. 21, c. 28, § § 19, 20, 30 Stat. 760 (the court in admiralty niay refuse to
receive evidence of offences by seamen when not entered in the official log).
1906, The Amazon, 144 Fed. 153, D. C. (statute applied).
293
§ 1352 PREFERRED WITNESSES
[Note 11, pax. 1; add:]
Ky. Gen. Stats. 1899, c. 81, § 17, Stats. 1903, § 3760 ("Unless in a direct proceeding against
himself or his sureties, no fact officially stated by an officer in respect of a matter about
which by law he is required to make a statement in writing, either in the form of a certificate,
return, or otherwise, shall be called in question, except upon the allegation of fraud in the
party benefited thereby, or mistake on the part of the officer").
1906, Husbands v. Polivick, — Ky. — , 96 S, W. 826 (statute applied as a rule of presumption
to a tax-collector's return on a tax sale).
1914, Malone v. Alderdice, 8th C. C. A., 212 Fed. 668 (commission to the Five Civilized
Tribes of Oklahoma, to enrol their citizens, held a quasi-judicial body having power to
determine, and its determinations of material facts held conclusive, including the fact of
minority of age before 1900 ; but not conclusive as to facts not material, i.e. as to precise age) .
[Text, p. 1663, 1. 8,' insert a new par. (6) :]
(6) In Louisiana the French principle of proof prevails, viz. that certain
official notarial certificates, particularly for the execution of contracts, wills,
deeds, etc., are conclusive, except for specified purposes. Transactions
and documents ("acts") so drawn up are termed "authentic," which sig-
nifies " executed before a public officer and certified by him." The Code
Civil of France provides (§ 1319) : " An authentic act makes full proof of
the agreement contained in it, against the contracting parties and their
assigns." '"'"
'»" The application of this principle may be seen in the following cases :
1912, Block's Succession, 131 La. 101, 59 So. 29 (notary's certificate of execution of a nuncu-
pative will).
§ 1354. Constitutionality of Statutes, etc. ; Applications of Principles.
[Note 4:; add:]
1906, Husbands v. Polivick, — Ky. — , 96 S. W. 826 (tax-deed is presumptive only).
[Note 6; add:]
1905, Calkins v. Howard, 2 Cal. App. 233, 83 Pac. 280 (statute declaring that a sale in bulk
without notice is "conclusively presumed to be fraudulent and void" as against creditors,
enforced as valid).
1907, Re Applicants for License, 143 N. C. 1, 55 S. E. 635 (a statute providing that ap-
plicants for the bar who file a certificate of good character signed by two attorneys, and
satisfy the Court as to their legal knowledge shall be admitted, makes the certificate con-
clusive as to character, and is valid ; the above distinction is recognized ; "if a legislature,
having prescribed certain qualifications, should undertake to direct whether an applicant
did or did not possess them, this might be an unconstitutional exercise of judicial power ;
but not so here," for the legislature prescribed in effect the possession of such a certificate
as a qualification; compare on this case Mr. Lee's article, cited infra, n. 10).
[Note 7; add:]
1907, Powell, J., in Mulkey v. State, 1 Ga. App. 521, 57 S. E. 1022 (cited more fully infra,
■a. 22o).
[Note 9, at 1. 1; add:]
1913, Ex parte Woodward, — Ala. — , 61 So. 295.
1908, Hammond v. State, 78 Oh. 15, 84 N. E. 416 (Rev. St. § 4427-6, providing that, on a
294
PREFERRED WITNESSES § 1354
[Note 9 — continued]
charge of being engaged in a trust-combination to control trade, "the character of the trust
or combination alleged may be estabhshed by proof of its general reputation as such " is
unconstitutional, as being in effect a "rule of conclusive evidence . . . that shall be
binding").
Compare the cases and statutes merely admitting reputation as evidence (post, §§ 1620-
1626).
[Note 10, par. 1 ; add :]
1909, Ex parte Allen, 82 Vt. 365, 73 Atl. 1078 (physician's sworn certificate of insanity,
which was required by statute before committal, held not conclusive under the statute;
and a statute which made it conclusive would be void).
[Note 14, 1. 6 from the end ; omit the remaining six lines, and insert the following :]
1902, Japanese Immigrant Case, 189 U. S. 86, 99, 23 Sup. 611 (the arbitrariness of an execu-
tive officer's action under such a statute will be reviewed) ; 1903, Gonzales v. Williams, 192
U. S. 1, 15, 24 Sup. 177 (passing on St. 1903, Mar. 3, c. 1012, 32, State. 1213) ; 1904, Hopkins
1). Fachant, 130 Fed. 839, 65 C. C. A. 1 (same statute) ; 1904, Tom Hong v. U. S., 193 U. S.
517, 24 Sup. 517.
A similar statute, making conclusive, for certain purposes, a Chinese immigrant's certifi-
cate of occupation, has been enforced : U. S. 1884, July 5, c. 220, 23 Stat. L. 115, 1 Rev. St.
Suppl. 458 ; 1891, Wan Shing v. U. S., 140 U. S. 424, 11 Sup. 729 ; 1904, U. S. v. Gin Hing, 8
Ariz. 416, 76 Pac. 639.
But a partial halt seems now to have been taken in the license to Executive usurpation
granted by this particular fine of statutes. The extreme result of the logic of the foregoing
rulings would have been to sanction the exclusion or deportation, by administrative fiat, of
an American-born person, a citizen by express constitutional provision, without affording a
judicial review of the administrative ofiicer's erroneous assertion that the citizen was a
Chinese alien. This step was taken, with one foot, for the case of an American citizen
excluded on his return from abroad : 1904, U. S. d. Sing Tuck, 194 U. S. 161, 24 Sup. 621,
overruling Sing Tuck v. U. S., 128 Fed. 592, C. C. A. (U. S. St. 1894, Aug. 18, c. 301, § 1,
makes the decision of the Secretary of Commerce and Labor conclusive, after a due hearing,
upon the fact of non-citizenship of a person of Chinese parentage claiming entrance as a
native-born citizen ; constitutionality of the statute, not decided) ; 1905, U. S. v. Ju Toy,
198 id. 253,^25 Sup. 645 (constitutionality of the preceding statute affirmed ; "with regard
to him [a returning citizen], due process of law does not require a judicial trial ; . . . the
decision may be entrusted to an executive officer" ; three judges dissenting; Brewer, J. .
"Such a decision is to my mind appalling ; ... an obnoxious class may be put beyond the
protection of the Constitution by ministerial officers of the State proceeding in strict accord
with exactly similar rules").
But the final step, namely, the same ruling for the case of an American citizen ordered to
be deported, though now here and having never left the country, has not yet been taken by
the Supreme Court ; and the tendency shown by the lower and intermediate Courts has
thus far been to refuse to take this step ; for the extraordinary and broad consequences of it
(as suggested in the dissenting opinion of Brewer, J., in U. S. v. Ju Toy, supra) are presum-
ably becoming apparent :
1903, Re Lea, 126 Fed. 234, D. C. (under the immigration laws, a claim of citizenship is a
judiciable question) .
1903, U. S. V. Hung Chang, 126 Fed. 400, 405, D. C, semhle (the deportation of a native-
born citizen is unconstitutional ; hence the issue whether a particular person to be deported
is native-born is a judiciable one).
1906, Moy Suey v. U. S., 147 Fed. 697, C. C. A. ("Nativity gives citizenship, and is a right
under the Constitution. It is a right that Congress would be without constitutional power
295 ,
§ 1354 PREFERRED WITNESSES
[Note 14 — continued]
to curtail or give away. It is a right to be adjudicated in the Courts, in the usual and ordi-
nary way of adjudicating constitutional rights"; distinguishing U. S. v. Sing Tuck on the
ground that here 'the alleged citizen is within the country, and not seeking to re-enter it after
departure). '
1907, Chin Yow v. U. S., 208 U. S. 8 (habeas corpus by a Chinese claiming citizenship by
birth, and alleging that he was not permitted to adduce available testimony ; Holmes, J. r
"As between the substantive right of citizens to enter, and of persons alleging themselves
to be citizens to have a chance to prove their allegation, on the one side, and the conclusive-
ness of the commissioner's fiat on the other, when one or the other must give way, the latter
must yield" ; this is some palliation).
1908, In re Tang Tun, In re Gang Gong, In re Can Pon, D. C. W. D. Wash., 161 Fed. 618,
625 (here Hanford, J., emphasizes the gravity of danger in a law submitting to executive
officials the determination of the constitutional right of citizenship by birth).
1909, Re Can Pon, 9th C. C. A., 168 Fed. 479 (procedure of immigration, ofiicers, pre-
cribed).
1909, Re Tang Tun, 9th C. C. C, 168 Fed. 488 (similar).
1909, Liu Hop Fong v. U. S., 209 U. S. 453, 28 Sup. 576 (an order of deportation made by the
district judge on the commissioner's findings, without other evidence, held improper under
the circumstances).
1910, U. S. V. Chu Hang, D. C. S. C, 179 Fed. 564 (similar to Tang Tun's Case, per Brawley,
J.).
1914, Hanges v. Whitfield, D. C. N. D. la., 209 Fed. 675 (deportation of an immigrant under
St. 1907, Feb. 20, as amended by St. 1910, Mar. 26, c. 128, 36 Stats. L. 263).
In any event there may at least be recognized a difference of burden of proof between cases
where the applicant is already on American soil claiming American citizenship and where
he is entering from abroad ; the burden is on the Government in the former case : 1906,
Moy Suey v. U. S., 7th C. C. A., 147 Fed. 697 ; 1911, Gee Cue Beng v. U. S., 5th C. C. A.,
184 Fed. 383.
That the likelihood of abuse of this executive authority is not merely imaginative or fastid-
ious may be seen from Ex parte Ung King Seng, D. C. N. D. Cal. (1914), 213 Fed. 119 ;
here the inspector had refused to allow any cross-examination at all of the witnesses pro-
duced for the government ; and to such a pitch of callous indifference had local deportation
practice come that the government counsel on argument had the hardihood to suggest
that "it would be a nuisance to permit cross-examination." Cross-examination a nuisance !
This amply illustrates the ease with which the best traditions of our justice can degenerate
when the control of our Courts is withdrawn.
The tendency of the times' towards the expansion of administrative finality is lucidly
discussed and favored, and the decisions collated, by Professor F. J. Goodnow, in an article
entitled "The Growth of Executive Discretion," in the Proceedings of the American Pohti-
cal Science Association, II, 29 (1905) ; this author, however, does not clearly face the dis-
tinction vital to the objectors against the new tendency, namely, the distinction between
administrative finality within the sphere of administrative services (e. g. the postal service),
and administrative finality as extended to fundamental private rights (e. g. property and
citizenship) which the Judiciary exist inherently to protect. The new tendency is criticised
by Mr. E. M. Parker, in 20 Harvard Law Review, 116 (1906 ; "Executive Judgments and
Executive Legislation"), and is advocated by Mr. T. R. Powell, in 1 American PoUtical
Science Review, 583 (1907; "Conclusiveness of Administrative Determinations in the
Federal Government"), in 22 Harvard Law Review, 360 (1909 ; "Judicial Review of Ad-
ministrative Action in Immigration Proceedings"), and 24 Harv. L. Rev. (1911; "Ad-
ministrative Exercise of the Police Power"). The most philosophical treatment anywhere
to be found is that of Professor Roscoe Pound, in his article "Executive Justice" (Ameri-
can Law Register, n. s., March, 1907), in which he analyzes the fundamental reasons for
the appearance of the new tendency of decision.
296
PREFERRED WITNESSES § 1362
[Note 15; add:]
So also postal officials:
1904, Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. 789 (order excluding fraudulent
communications from the mails).
For the Federal land-offiee decisions, see ante, § 1347, n. 7.
[Note 16; add:]
1912, Reitler v. Harris, 223 U. S. 437, 32 Sup. 248 (Kan. St. 1907, c. 373, making an entry
of forfeiture of school land for default in payment prima /ocie evidence of proper prelimi-
nary steps).
[Note 18; add:]
1904, Adams v. New York, 192 U. S.' 585, 24 Sup. 372 (policy slips ; possession as raising a
presumption of knowledge).
[NoU 19; oM:]
1910, Toole V. State, 170 Ala. 41, 54 So. 195 (statute making the keeping of liquor etc.,
prima facie evidence of intent to sell, held constitutional).
1908, People v. McBride, 234 111.' 146, 84 N. E. 865 (statute making the issuance of an inter-
nal revenue stamp prima facie evidence, held constitutional, following Meadowcroft v.
People, supra, n. 17).
1910, Diamond «. State, 123 Tenn., 348, 131 S. W. 666 (illegal liquor sale; a statute making
the procuring of a Federal revenue license prima facie evidence of being in the liquor busi-
ness, held valid).
[Text, p. 1671, last line; add:]
and in sundry other respects.^^"
^ 1907, Mulkey v. State, 1 Ga. App. 521, 57 S. E. 1022 (St. 1903, Aug. 15, p. 90, pijnishing
fraudulent contracts to render service, and making non-performance presumptive evidence
of fraudulent intent, held constitutional, but not applicable to remote acts ; weighty opinion
by Powell, J., the best on the subject). 1912, Wilson v. State, 138 Ga. 489, 75 S. E. 619
(P. C. 1910, § 715, making non-performance of a contract of service presumptive evidence
of fraudulent intent, held valid).
1904, People ex rel. Hillel Lodge v. Rose, 207 111. 352, 69 N. E. 762 (St. 1901, May 10,
declaring the failure of a corporation to file an annual report prima facie evidence of non-
user, is constitutional ; otherwise if a rule of conclusiveness had been declared ; Magruder,
J., diss, on other grounds).
1906, Williams v. Fourth Nat'l Bank, 15 Okl. 477, 82 Pac. 496 (sales in bulk).
1905, State v. Lawson, 40 Wash. 455, 82 Pac. 750 (official records of physicians' licenses).
1905, Andricus' Adm'r v. Pineville Coal Co., 121 Ky. 724, 90 S. W. 233 (statute making a
mine inspector's report prima fade evidence, held constitutional).
1904, Com. V. Anselvich, 186 Mass. 376, 71 N. E. 790 (a statute making the possession of
registered bottles, etc., prima facie evidence of crime).
1910, Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 Sup. 337 (a statute making the
pimiping of certain waters prima fade evidence of an offence under the statute, and putting
on such party the burden of showing that he comes within an exception, held valid).
1909, Ex parte Allen, 82 Vt. 365, 73 Atl. 1078 (statute making a physician's sworn certificate
prima fade evidence of insanity in committal proceedings, held valid).
§ 1362. Theory of the Hearsay Rule.
[Note 1 ; add :]
1909, State v. Heffernan, 24 S. D. 1, 123 N. W. 87 (careful opinion by McCoy, J.).
297
§ 1364 HEARSAY RULE
§ 1364. History of the Hearsay Rule.
[Note 24, at the end; add:]
The earlier loose practice in this respect is seen in a London case of 33 Edw. I, cited in
Bateson's Borough Customs, II, Introd. p. 32 (Selden Society Pub., XXI, 1906).
[NoU 28; add:]
For the history and theory of the Hearsay rule on the Continent, see a learned and exhaustive
essay by Eugen Kulischer, "Das Zeugnis von Horensagen," in Zeitschrift fiir privat- und
offentliches Recht, 1907, XXXIV, 169.
[Note 4:7,1 14; add:]
About this time the great dramatist reveals a popular notion of the justice of the rule S
Richard II, IV, 1 :
Bishop. "Thieves are not judged but [= unless] they are by to hear.
Although apparent guilt be seen in them."
1613 {circa) King Henry VIII, II, 1 :
1 Gent. . . . "The great duke
Came to the bar. . . .
The king's attorney, on the contrary,
Urged on the examinations, proofs, confessions,
Of divers witnesses, which the duke desired
To have brought viva voce to his face ;
At which appeared against him his stn-veyor,'' etc.
§ 1867. Cross-Ezamination as a Distinctive Feature, etc.
[Note 5 ; add :]
Mr. (Assistant District Attorney) Arthur Train points out the analogous failures of cross-
examination through an interpreter ("The Prisoner at the Bar," 1906, p. 239) : "It is practi-
cally impossible to cross-examine through an interpreter, for the whole psychological signifi-
cance of the answer is destroyed ; ample opportunity being given for the witness to collect
his wits and carefully to frame his reply."
§ 1368. Theory and Art of Cross-Examination.
[NoteW; add:]
1906, Train, " The Prisoner at the Bar," 290 (cross-examination of the old lady).
[Note 14; add:]
Mr. Train has collected (" The Prisoner at t}ie Bar," 1906, pp. 286-290) some useful ex-
amples on this point.
§ 1371. Opportunity of Cross-Examination, etc.
[Note 1, par. 1; add:]
1907, Munster v. Ashworth, 29 D. C. App. 84 (counsel left the place, stating that he did not
care to cross-examine ; admitted).
1904, Union I. & F. Co. v. Soonenfield, 113 La. 436, 37 So. 20.
The ruling in Hosch Lumber Co. v. Weeks, 123 Ga. 336, 51 S. E. 439 (1905), that where
the taking party fails to attend but the opponent attends and cross-examines, the latter
cannot use his cross-examination but must give notice again and take the deposition again
as his own, is both unsound and unjust.
Distinguish the principles of § 912, ante, § 1983, n. 7, post.
298
GENERAL PEINCIPLE § 1380
§ 1373. Svindry Tribunals.
[Note 1; add:]
So also court commissioners of various sorts :
1906, U.S. V. Greene, 146 Fed. 796, — D. C. — (deceased witness' testimony before a U. S.
commissioner on a proceeding for extradition, admitted).
§ 1374. Testimony at a Coroner's Inquest.
[Note 5; aM:]
Accord: 1904, Knights Templar & M. L. I. Co. v. Crayton, 209 111. 550, 70 N. E. 1066
(excluded).
Not decided: 1905, Puis v. Grand Lodge, 13 N. D. 559, 102 N. W. 165.
§ 1375. Testimony before Committing Magistrate, etc.
[Notei, col. 2,1. 1; add:]
N. C. Rev. 1905, § 3205 (like Code 1883, § 1157). '
1909, State v. Heffernan, 24 S. D. 1, 123 N. W. 87.
[Note 4, at the end ; add :]
Compare 111. St. 1907, Feb. 11, p. 66 (bastardy complaint; the woman shall be examined
by the magistrate upon oath, etc., "in the presence of the man alleged to be the father of the
child").
§ 1378. Depositions ; Notice and Sufficient Time, etc.
[Note 1; add:]
Whether the notice must be served on party or attorney depends chiefly on statutory word-
ings : 1906, Webb v. Ritter, 60 W. Va. 193, 54 S. E. 484.
Defects in the designation of residence etc. are immaterial if they did not in fact mislead :
1908, Rock Island Plow Co. v. Schoening, 104 Minn. 163, 116 N. W. 356.
But the requirement of notice does not apply to ex parte testimony, miscalled deposi-
tions, used as a sworn complaint to authorize a magistrate's issuance of a warrant : 1909,
State V. Stevens, 19 N. D. 249, 123 N. W. 888.
[Note 4, par. 1 ; add, under Accord :]
1908, Bolhnger v. Bollinger, 153 Cal. 190, 94 Pac. 770 (attendance waives all irregularity in
the f onn of notice ; but the correct theory is not that there is a waiver, but that de facto
opportunity to examine is all that is needed).
1907, Munster v. Ashworth, 29 D. C. App. 84 (notice for deposition of witness M., three
others were produced).
1905, Real Estate T. Co. v. Union T. Co., 102 Md. 41, 61 Atl. 228.
§ 1379. Same : Plural Depositions, etc.
[Note 2; add:]
1906, Ivey v. Bessemer C. C. Mills, 143 N. C. 189, 55 S. E. 613 (notice to attend in F. and
in P. ; the opponent attended at P., and the deposition at F. was not taken).
§ 1380. Depositions ; English and Canadian Statutes.
[Note 3; add:]
Eng. : ', 1904, St. 4 Edw. VII, c. 15, § 14 (Prevention of Cruelty to' Children Act ; for deposi-
tions of children, notice and opportunity of cross-examination are required).
299
§ 1380 HEARSAY RULE
[Note 3 : — continued]
St. 1908, 8 Edw. VII, c. 67, §§ 28, 29 (Children Act; notice for deposition of child or young
person).
Br. C. St. 1903^, 3 & 4 Edw. VII, c. 15, § 69 (all witnesses before any judge, etc., "shall
give their testimony viva voce on oath, and be subject to examination by counsel in the
presence of the Court," etc., "unless it is otherwise ordered by the Court or a judge on
special grounds, or with the consent of the parties," etc.) ; ib. § 70 (nothing herein shall
"affect the mode of giving evidence by the oral examination of witnesses in trials by jury
or before a judge without a jury," "save as far as relates to the power of the Court for special
reasons to allow depositions or affidavits to be read").
St. 1905, 5 Edw. VII, c. 14, § 95 (county courts; like Rev. St. 1897, c. 52, § 134).
Newf. St. 1904, c. 3, Rules of Court 33 (provisions for notice ; further provisions as quoted
post, § 1411, 11. 1).
Ont. St. 1910, 10 Edw. VII, c. 32, § 118 (division courts).
P. E. I. St. 1910, c. 8, § 48 (chancery proceedings) ; St. 1910, c. 3, § 45 (election trials).
Yukon Consol. Ord. 1902, c. 17, Ord. XXVI, R. 262 (like Ont. Rules of Court, § 483) ; R.
292 (like Eng. Ord. 38).
§ 1381. Same : U. S. Federal Statutes.
[Nate 1 ; add :]
St.. 1909, Feb. 16, c. 130, No. 230 (35 Stat. L. p. 620), § 16 (rules for depositions in naval
courts).
St. 1911, Mar. 3, c. 231, Judicial Code, § 169 (testimony for Court of Claims; superseding
Rev. St. § 1083).
Equity Rules 1912, Rules 53, 54.
[Note 3; add:]
The latest pronouncements on this question are as follows :
1903, Hanks Dental Ass'n v. Tooth Crown Co., 194 U. S. 303, 24 Sup. 700 (U. S. St. 1892,
c. 14, Mar. 9, "does not purport to repeal in any part, or to modify, § 861, or to creat addi-
tional exceptions to those specified in the subsequent sections by enlarging the causes or
grounds for taking depositions" ; here applied to forbid following New York law as to deposi-
tions of a party for discovery before trial ; collecting the intervening rulings of the Federal
intermediate coiu-ts on St. 1892).
1904, Zych v. American Car & F. Co., 127 Fed. 723, 728, C. C. (Thayer, J. : "It will not be
out of place to observe, because the question has been to some extent discussed, that the
law as declared in Ex parte Fisk has not been altered by the act of Congress of Mar. 9, 1892,
supra; . . . there seems to be a general consensus of judicial opinion that the act relates
merely to the mode of taking testimony, adopting in that respect the provisions of the laws
of the various States relative to the method of taking depositions, without altering the con-
ditions prescribed by §§ 863 and 866 of the Revised Statutes of the U. S. under which
depositions for use in the Federal courts may be taken").
1905, Carrara P. A. Co. v. Carrara P. Co., 137 Fed. 319, C. C. (the statute of 1892 does not
"add to the classes of witnesses" but "provides an additional mode" for taking deposi-
tions).
Compare the new statute quoted ante,, § 6.
§ 1382. Same : U. S. State Statutes.
[Note 1; add:]
Ala. : 1905, Edwards v. Edwards, 142 Ala. 267, 39 So. 82 (Chancery statute applied).
Cal. St. 1903, c. 255 (adding to C. C. P. 1872 a new § 2025^, providing for depositions of
non-resident witnesses on oral interrogatories, with rules for notice). St. 1905, c. 540
300
GENERAL PRINCIPLE § 1383
[Note 1 — continued]
(amends P. C. 1872, §§ 1335-1341, as to the mode of taking the depositions). St. 1905, c.
670 (amends P. C. 1872, §§ 872, 882). St. 1905, c. 540 (amending P. C. § 882; prosecu-
tion's depositions in criminal cases; quoted post, § 1411, n. 1).
St. 1907, c. 392, p. 731, Mar. 20, § 5 (repealing C. C. P. § 2033).
D. C. : 1913, Hutchins v. llutchins, 41 D. C. App. 367 (this Court cannot order a deposition
by commission on oral examination of a witness in a foreign country ; only letters rogatory
can be used, with the questions prepared beforehand).
Ga. St. 1908, No. 568, p. 84, Aug. 17 (rules for deposition without a commission ; whenever
notice is " impracticable" and "urgent necessity" exists, the notice may be such as judge
thinks "reasonable and direct").
III. : 1903, Arrowsmith's Estate, 206 111. 352, 69 N. E. 77 (semble, under R. S. c. 148, § 4,
providing for depositions in probate cases by commission, the failure of the opponent to
receive notice of the taking does not prevent the use of the deposition).
Ind. St. 1905, p. 584, § 242 (phraseology of the foregoing statute changed).
la. : 1905, State v. Mosher, 128 la. 82, 103 N. W. 105 (Code, § 4688, as to deposition by
Court order, construed).
La. : 1905, Honor Co. v. Stevedores' & L. B. Ass'n, 114 La. 361, 38 So. 271 (notice required).
1905, De Renzes v. His Wife, 115 La. 675, 39 So. 865 (under Rev. St. § 611, for a foreign com-
mission, no notice of time and place is required when interrogatories are annexed and notice
thereof given). St. 1910, No. 176, p. 261, July 6 (witnesses residing out of the parish;
reasonable notice required). ,
Md. St. 1906, c. 239 (repealing Pub. Gen. L. 1904, art. 35, § 36 ; provision made for taking
testimony on a commission from without the State).
Mo. : 1903, ife Wogan, 103 Mo. App. 146, 77 S. W. 490 (time of notice).
Mont. St. 1907, c. 109, p. 262, Mar. 6 (amending Cr. C. §§ 2480-2491).
N. J.: 1904, Stokes v. Hardy, 71 N. J. L. 116, 58 Atl. 650 (proof of notice).
N. Y. St. 1914, c. 443, §§ 2543, 2544 (amending C. C. P. c. XVIII, surrogate proceed-
ings).
N. C. Rev. 1905, § 1662 (like Code 1883, § 1357, as amended by later statutes).
Oh. St. 1913, p. 443, May 8 (amending Gen. Code §§ 13668, 13669; depositions may be
taken by the State).
OH. St. 1913, c. 68, p. 106 (amending Comp. L. 1909, § 6623, in unspecified details).
Or. St. 1911, c. 148, p. 200 (amending § 835 of Bell. & C. Armot. Codes & Stats.).
Pa. St. 1909, No. 167, p. 258 (witnesses out of the State but in the U. S., in criminal
cases).
S. C. St. 1909, No. 128, p. 206 (deposition of the female in rape cases).
Tenn. St. 1907, c. 87, p. 252 (witnesses to will of foreign testator).
Tex. St. 1905, c. 76 (Rev. Civ. St. 1895, §§ 2282, 2284, as to notice, etc., amended, and § 2274 a
added). St. 1907, c. 91, p. 186 (amending Rev. Civ. Stats. §§ 2282, 2284, 2291, as to
depositions by commission and by oral examination).
Utah St. 1905, c. 41,,Mar. 7 (providing a mode of depositions taking without the State on
oral interrogatories).
Wis. St. 1905, c. 237 (rules for notice, in Stats. 1898, § 4102, amended). St. 1913, c. 336,
p. 367 (Stats. § 4086, amended so as to permit the State to take depositions in criminal
cases).
§ 1383. Same : Depositions in Perpetuam Memoriam.
[Note 1 ; add:]
1909, Ohio Copper M. Co. v. Hutchings, 8th C. C. A., 172 Fed. 201 (under Utah Rev. St.
1898, § 3467, the deposition of a person corporally injured may be taken at the instance of his
wife and may be used on his death, clause (1) of the statute permitting this).
301
§ 1384 HEARSAY RULE
§ 1384. Affidavits, etc.
[Note 1, par. 1; add:]
1909, McCabe v. State, 85 Nebr. 278, 122 N. W. 893 tillegal sale of liquor; the search-
warrant and return, including the sworn complaint before the county court by L. who did
not testify on the trial, was admitted ; held erroneous).
1906, People v. Wolf, 183 N. Y. 464, 76 N. E. 592 (affidavits forming a criminal information
against the defendant).
1909, State v. Weil, 83 S. C. 478,65 S. E. 634 (illegal liquor-selling ; record of an injunction-
case against the defendant, containing affidavits, held improperly admitted).
§ 1385. Ex parte Expert Investigations, etc.
[Note 1; add:]
Accord : 1906, Lenoir v. People's Bank, 87 Miss. 659, 40 So. 5 (maps and surveys testified
to by the surveyor, taken in a survey made with the notice provided in Code 1892, § 1653,
admitted).
Contra : 1903, Wood v. LeBlanc, 35 N. Br. 47, 56, by two judges among seven (a witness
using a plan to illustrate his testimony should prepare it in court, not before trial ; this is
unsound).
§ 1387. Issue the Same.
[Note 1; add:]
1909, Edmunds' Case, 2 Cr. App. 257 (like R. v. Beeston, supra).
1905, Nordan v. State, 143 Ala. 13, 39 So. 406 (murder by abortion ; testimony of the de-
ceased, in a prior criminal prosecution against the defendant for the seduction, as to the
handwriting of certain letters there and here offered, admitted, the particular issue being
identical).
1912, Fox V. State, 102 Ark. 393, 144 S. W. 516 (robbery of C. W., defendant being charged
as accessory; on a former indictment of defendant as accessory to the murder of C. W., the
robbery and the murder being parts of the same transaction by the same persons, the
testimony of a now deceased witness was taken ; admitted ; sensible opinion by Hart, J.).
1913, Atwood V. Atwood, 86 Conn. 579, 86 Atl. 29 (issues held substantially the same, on
the facts).
1910, Mclnturff v. Insurance Co., 248 111. 92, 93 N. E. 369 (plaintiff's house was burned in.
March, 1908 ; later in 1908 the plaintiff and his wife were indicted for fraudulent arson,
and B. at that trial testified for the prosecution ; the accused were acquitted ; the now
plaintiff then shot and killed B. ; afterwards the present suit was brought, and the testi-
mony of B. formerly given on the criminal trial was offered for the defendant, on its plea
of fraudulent arson; excluded; the decision is erroneous on principle, because the issue in
the two trials was precisely the same, and the parties were substantially the same ; perhaps
no precedent has gone as far as to admit in such a case ; but the artificial application of the
principle as in the present case would reduce the principle to dead wood ; the ruling falls
under the censure of the text above, p. 1729 ; see an able critique of the case by Professor
Henry C. Hall in the Illinois Law Review, VI, 136).
1908, McGivern v. Steele, 197 Mass. 164, 83 N. E. 405.
1904, Taft V. Little, 178 N. Y. 127, 70 N. E. 211 (a former trial, in which the case had been
rested but no formal termination reached, owing to the referee's death, held sufficient under
C. C. P. §830).
1907, Shaw v. N. Y. Elev. R. Co., 187 N. Y. 186, 79 N. E. 984 (action to enjoin the operation
of an elevated raih-oad ; a deceased witness' testimony for the plaintiff at the first trial,
admitted at the second trial against a party becoming a lessee after the fu-st trial and brought
in by stipulation as a defendant on the second trial; St. 1899, c. 352, p. 762, and St. 1893,
302
GENERAL PRINCIPLE § 1388
[Note 1 — continued]
c. 595, p. 1375, amending C. C. P. 1877, § 830, held not to affect this result, the testimony
being admissible on common-law principles).
1912, Lynch's Adm'r v. Murray, 86 Vt. 1, 83 Atl. 746 (fraudulent conveyance; issues held
substantially the same, approving the text above).
[Note 2; cdd:]
Newf. St. 1904, c. 3, Rules of Court, 33, par. 25.
N. W. Terr. Consol. Ord. 1898, c. 21, R. 287 Gike N. Sc. Ord. 35, R. 24).
Yukon Consol. Ord. 1902, c. 17, Ord. XXVI, R. 286 Qike N. Sc. Ord. 35, R. 24).
Col. St. 1905, c. 540 (amends P. C. 1872, § 882, so as to admit depositions for the prosecution
taken before a committing magistrate; quoted post, § 1411, n. 1).
' la. St. 1898, p. 16, c. 9, § 1, Code Suppl. 1902, § 245a (quoted more fully post, § 1669, n. 2 ;
notes of testimony are admissible "on any retrial of the case or proceeding in which the same
were taken," and "shall have the same force and effect as a deposition").
Ky. St. 1904, c. 79 (real estate controversies ; elaborate provisions for notice ; the deposition
to be evidence in any court having jurisdiction).
Wash. St. 1905, c. 26 (testimony "given in a former action or proceeding, or in a former trial
of the same cause or proceeding," if a civil one, "where it is between the same parties and
relates to the same matter," is' admissible).
Wis. St. 1909, c. 107, Stats. § 4141a (deceased witness' testimony admissible "in any other
action where the party against whom it is offered shall have had the opportunity to cross-
examine the deceased witness and where the issue upon which it is offered is< substantially
the same").
[Note 3; add:]
Cal. St. 1907, c. 392, p. 731, Mar. 20, § 2 (adding a new C. C. P. § 2022 : "A deposition
taken and returned as provided in this chapter may, except as provided in § 2032, be read in
evidence by either party at any stage of the action or proceeding in which it was taken, or
in any other action or proceeding between the same parties or their privies or successors
in interest upon the same subject, and is then deemed the evidence of the party reading it ;
but the Court may exclude the same if it appear that the taking thereof was in any material
respect unfair"; repealing C. C. P. § 2034).
N. Y. St. 1909, c. 65, § 3, p. 34 (C. C. P. § 885, amended; rules for use of deposition on
contested motion).
St. 1911, c. 764, p. 2029 (amending C. C. P. § 830).
St. 1911, c. 859, p. 2401 (amending C. C. P. § 881, to apply to special proceedings).
St. 1913, c. 140, p. 232 (amending C. C. P. §§ 1688/ to i, as to depositions before a referee).
[Note 6; add:]
A similar question arises where a surety or joivMortfeasor sues principal or co-tortfeasor for
eontribution to a claim sued for and paid ; here the testimony at the first trial may be re-
ceived as a part of the record (even without showing the witnesses unavailable) to define the
scope of the issue adjudged, but not as testimony to the facts : 1896, Washington G. Co. v.
District, 161 U. S. 316, 16 Sup. 564. 1906, Spokane v. Costello, 42 Wash. 182, 84 Pac. 652.
[Note 7; add:]
1909, State v. Longstreth, 19 N. D. 268, 121 N. W. 1114 (procuring an abortion; defendant's
testimony in a suit by the woman for bastardy, admitted).
§ 1388. Parties or Privies the Same.
[Note 6, par. 1; add:]
1907, In re Durant, 80 Conn. 140, 67 Atl. 497 (disbarment ; a deceased witness' testimony
before a bar association grievance committee on charges against the now respondent, ad-
303
§ 1388 HEARSAY RULE
[Note 6 — continued]
mitted ; "the requirement of identity of parties is only a means to an end ; . . . the issues
were substantially the same, and nothing more is necessary in that regard," per Prentice,
J. ; approving the above text).
1911, London Guarantee & A. Co. v. American Cereal Cot, 251 111. 123, 95 N. E. 1064 ("both
actions must involve the same issue between the same parties or their privies," and the
fact that the now opponent " was a party to the former action and had full opportunity to
cross-examine the witness does not necessarily render the testimony admissible " ; thus adher-
ing to the reactionary ruling in Mclnturff v. Ins. Co., supra, § 1387 ; here applied to a suit
involving the liability of an independent contractor on the facts, the testimony was emphat-
ically such as would have been admitted by any procedure founded on good sense). 1914,
Stephens v. Hoffman, 263 111. 197, 104 N. E. 1090 (ejectment; former testimony in an eject-
ment siiit between present opponents and offeror's predecessor in title, admitted).
1905, Hunter v. District Court, 126 la. 357, 102 N. W. 156 (contempt; testimony in a
similar charge against an accomplice, excluded). 1906, Wiltsey's Will, 135 la. 430, 109
N. W. 776 (testimony at a former probate proceeding for the same will, with parties slightly
different in form, admitted under Code Suppl. 1902, § 245a, cited ante, § 1387, n. 2).
1905, Andricus' Adm'r v. Pineville Coal Co., — Ky. — , 90 S. W. 233 (two fellow-workmen
killed at the same time and place by the same cause, and two actions by the same person
their administrator against the same defendant ; a deposition taken in one, admitted in the
other).
1912, Eesley Light & P. Co. v. Commonwealth P. Co., 172 Mich. 78, 137 N. W. 663 (water-
power dam ; testimony about the same river's history, in a suit between different parties,
on a different issue, excluded).
1904, Edgerly's Estate, — Minn. — , 99 N. W. 896 (deposition not admitted against one not
a party).
1909, O'Meara v. McDermott, 40 Mont. 38, 104 Pac. 1049 (testimony in another suit, in-
volving the same parties, admitted; "precise nominal identity of all the parties is not
necessary").
1903, Persons v. Smith, 12 N. D. 403, 97 N. W. 551 (testimony between the same parties
on the same issues in the Federal Circuit Court, admitted).
Oh. St. 1913, p. 190, Apr. 23 (adding § 11540-1 to Gen. Code; "depositions taken by the
plaintiff in an action for damages for personal injuries may be read by the administrator"
etc. "in any action for damages or wrongfully caused death resulting from the same personal
injiu"ies").
1905, Martm v. Ragsdale, 71 S. C. 67, 50 S. E. 671 (former testimony in 1882 in a suit
between the present plaintiffs and a remote assignor of defendants on the same subject,
admitted).
1902, Miller v. Gillispie, 54 W. Va. 450, 46 S. E. 451 (deposition taken by defendant in a
creditor's suit to avoid a conveyance, not usable against another creditor in a suit to avoid
the same conveyance).
[Note 6, par. 3; add:]
1911, State V. Stewart, 85 Kan. 404, 116 Pac. 489.
1855, Com. V. Ehsha, 3 Gray 460.
1913, State v. Kore, — N. J. L. — , 88 Atl. 1039 (judgment of conviction of principal, ad-
missible to show principal's guilt in trial of accessory) ; and cases cited ante, § 1347, n. 1.
§ 1389. Deposition used by Either Party, etc.
[Note 1; add:]
1908, Western Union T. Co. v. Hanley, 85 Ark. 263, 107 S. W. 1168 (rule of Sexton v. Brock
not appUcaHe to deposition taken by agreement of parties).
304
GENERAL PRINCIPLE § 1391
[Note 1 — continued]
1908, Ong Chair Co. v. Cook, 85 Ark. 390, 108 S. W. 203 (following Sexton v. Brock).
1912, McDonald v. Brown, 90 Nebr. 676, 134 N. W. 263 (examination of bastardy com-
plainant).
[Note 2; add:]
1908, Richardson v. McMillan, 18 Man. 359 (and the; taker need not put it in).
1910, Johnson v. Birket, 21 Ont. L. R. 319 (the plaintiff in an action for money paid was
examined on discovery by defendant before trial ; she died ten months later ; her executor
on the trial offered her examination ; held inadmissible ; thoroughly unsound ; the opinion
does not appreciate that the plaintiff's answers were testimony, and therefore inevitably
fall within the present principle).
1913, Cartwright v. Toronto, 29 Ont. L. R. 73, 13 D. L. R. 604 (like Johnson v. Birket, 21
Ont. L. R. 319; plaintiff's predecessor in title died, having been examined on discovery
by defendant ; held, that plaintiff could not offer his answers as a deposition, unless defend-
ant had used some portion ; opinion shows the same unsoimd theory as to discovery-answers) .
Cal. St. 1907, c. 392, p. 731, Mar. 20, § 2 (adding a new C. C. P. § 2022).
1907, Chesapeake Stone Co. v. Fossett, — Ky. — , 100 S. W. 825.
1905, McDonald v. Smith, 139 Mich. 211, 102 N. W. 668 (by Circuit Court Rule
41a).
N. Y. St. 1911, c. 764, p. 2029 (amending C. C. P. § 830).
[Note 6; add:]
1912, Lake Erie & W. R. Co. v. Huffman, 177 Ind. 126, 97 N. E. 434 (H. sued in a State
court for personal injury caused by the defendant ; the cause was removed to the Federal
court ; H. died, and his administratrix was substituted ; the cause was dismissed, and a
suit for H.'s death was begun in a State court; the deposition of H. at the former trial was
admitted as against the defendant ; but not as'against the defendant's agent, who had not
been a party to the former suit).
§ 1390. Failure of Cross-Ezamination through Witness' Death, etc.
[Note 4; add:]
1804, O'Callaghan v. Murphy, 2 Sch. & Lefr. 158, Ire. (where a witness m chancery died
after direct examination but before any cross-examination, the testimony was read, on the
facts of the case).
1908, Wray v. State, 154 Ala. 36, 45 So. 697 (the witness was brought into court but his
physician stated that an examination might be fatal ; the Court declined to allow an ex-
amination ; but finally consented to allow the State to ask one vital question, which was
asked, and then the Court gave liberty to cross-examine, which was not availed of ; held,
that the right of cross-examination was not adequately had).
1910, Gale v. State, 135 Ga. 351, 69 S. E. 537 (the witness collapsed physically and men-
tally pending cross-examination; after adjournment and at a later session, the witness'
inability continuing, opponent's counsel declined to accept the judge's offer of a mistrial;
held that the trial judge's admission of the testimony was not improper; careful opinion
by Lumpkin, J., quoting the text above).
§ 1391. Failure of Cross-Ezamination through Witness' Refusal, etc.
[Note 1; add:]
Contra: 1826, Courtenay v. Hoskins, 2 Russ. 253 (the refusal of the witness to be cross-
examined is no reason for later suppressing the direct examination; because the cross-
examiner should insist at the time on the enforcement of his right).
305
§ 1392 HEARSAY RULE
§ 1392. Non-Responsive Answers, etc.
[Note 4; add:]
1906, Taylor v. Globe Ref. Co., 127 Ga. 138, 56 S. E. 292.
1906, Sparks v. Taylor, 99 Tex. 411, 90 S. W. 486 (further pertinent answers by an opponent
in discovery, made by advice of his attorney, admitted).
[Note 5, par. 1 ; add:]
1904, Young v. Valentine, 177 N. Y. 347, 69 N. E. 643 (an oral answer stricken out before
signing, and therefore not subject to cross-examination, cannot be used).
§ 1393. Sundry Insufficiencies of Cross-Examination (Interpreters, etc.).
[Text, p. 1747, par. (c), 1. 2, after "witness" ; add a new note 2a : ]
This may well be deemed a fundamental right; N. Mex. Const. 1910, Art. II, § 14 (in all
criminal prosecutions the accused is entitled "to have the charge and testimony inter-
preted to him in a language that he understands").
\
[NoU^; add:]
1912, The King «. Sylvester, 45 N. Sc. 525, 1 D. L. R. 186 (the accused were Itahans from
Calabria ; the interpreter for one important witness gave only the purport of the witness'
direct testimony delivered in English, and none of his cross-examination, but the counsel
cross-examined in English ; held no substantial error ; Graham, E. J., dissenting, in a sound
opinion ; prior English and Canadian cases collected ; the dissent deserves support, for the
most common official abuse in this country is to supply inadequate interpretation ; if the
judges could be sent to a foreign country and there haled into court for crime, and made
to feel the pUght of an alien accused, some improvement might take place).
[Text, par. (c), at the end; add:]
The same principle applies to an accused who is deaf or dumb or hlind?"
2'' 1905, Ralph V. State, 124 Ga. 81, 52 S. E. 299 (the accused being deaf, the Court
refused to let the testimony be taken by a stenographer and then typewritten and read by
the accused as the trial progressed, but allowed the counsel to write down the testimony
and show it to the accused ; held sufficient, in the trial Court's discretion).
Minn. St. 1905, c. 47 (a person deaf or dumb, charged with insanity, is entitled "as a matter
of absolute right" to an interpreter).
- 1906, Felts V. Murphy, 201 U. S. 123, 26 Sup. 366 (an accused, in a State court, unable by
deafness to hear the testimony, which was not repeated to him by his ear-trumpet ; this was
held not to give ground for complaint as a Federal question under the Fourteenth Amend-
ment).
[Text, p. 1747, at the end of par. (c), add:]
Moreover, the opponent is also entitled to cross-examine the interpreter so as
to test the correctness of the translation,** and to call other witnesses to verify
the interpretation.*"
* 1911, Terr. v. Kawano, 20 Haw. 469 (interpreter may be required to repeat in the for-
eign language the words used by him).
1859, Schnier v. People, 23 111. 1, 22 (interpreter may be required to give the primary mean-
ing, etc., of words used).
3" 1859, Schnier v. People, 23 111. 1, 22.
1878, Ulrich v. People, 39 Mich. 245, 251 (to correct a witness' account of a conversation
heard in a foreign language, other interpreting witnesses may be called to render the con-
versation as reported).
306
GENERAL PRINCIPLE § 1398
[Text, p. 1748, 1. 4; add a new par. (e) :]
(e) Whether the trial judge's limitation of the time for cross-examination
(ante § 783) has in effect deprived the opponent of its benefits may involve
the present principle.
§ 1395. Purpose and Theory of Confrontation.
[Note 2, at the end, add:]
The great dramatist alludes to this earlier conception, still current in his day :
King Richard: "Then call them to our presence ; face to face.
And frowning brow to brow, ourselves will hear
The accuser and the accused freely speak." (Richard II, I, 1).
The French practice still shows this notion of confrontation, in liveliest manner ; illus-
trations will be found in the French trials quoted in the Appendix to Sir J. F. Stephen's
History of the Criminal Law, and in those reported in Albert Batailles' " Causes Criminelles
et Mondaines," 1895 and earlier years.
It would be interesting to trace this earlier notion carefully in Howell's State Trials,
until its merger in the 1700s with the principle of cross-examination.
§ 1397. EfEect of Constitutional Sanction of Confrontation.
[Note 1; add:]
N. Mex. Const. 1910, Art. II, § 14 (" to be confronted with the witnesses against him").
[Text, p. 1755, end of par. (3) ; add a new note 2a :]
2» The above text was approved in the opinion of McCoy, J., for the Court, in State v.
Heffeman, 24 S. D. 1, 123 N. W. 87 (1909).
§ 1398. EfEect of Constitutional Sanction, etc. ; Law in Various Jurisdictions.
[Note 4; add:]
1905, State v. Mosher, 128 la. 82, 103 N. W. 105, semble (rule not applicable in disbarment
proceedings ; but "were this a criminal case, the point might be well taken").
1899, Re Wellcome, 23 Mont. 260, 58 Pac. 711, semble.
1909, Parks v. Com., 109 Va. 807, 63 S. E. 462 (Finn's Case repudiated, so far as concerns
the general principle; testimony of a deceased former witness, admitted; Finn's Case
restricted to the case of an absent witness; above text quoted).
[Note 5, par. 1 ; add :]
Cat. : 1907, People v. Clark, 151 Cal. 200, 90 Pac. 549 (affirming People v. Sierp ; "the matter
should be considered as finally settled").
Ida. : .1890, Terr. v. Evans, 2 Ida. Hash. 651, 23 Pac. 232. 1908, State v. Zarlenga, 14 Ida.
305, 94 Pac. 55.
Ind.: 1911, Wilson v. State, 175 Ind. 458, 93 N. E. 609 (witness out of the State and not
found).
la. : 1911, State ii. Kimes, 152 la. 240, 132 N. W. 180. 1911, State .ii. Brown, 152 la. 427,
132 N. W. 862 (applied to former testimony of one now out of the jurisdiction).
Kan. : 1904, State v. Nelson, 68 Kan. 566, 75 Pac. 505 (thus presumably disposing of the
doubt in State v. Tomblin, supra, n. 4). 1904, State v. Harmon, 70 Kan. 476, 78 Pac. 805
(foregoing case approved). 1911, State v. Stewart, 85 Kan. 404, 116 Pac. 489 (preliminary
examination). 1912, State v. Gentry, 86 Kan. 534, 121 Pac. 352 (preliminary examination).
Ky.: 1904, Fuqua v. Com., 118 Ky. 578, 81 S. W. 923 (former testimony of a deceased
307
§ 1398 HEARSAY RULE
[Note 5 — continued]
witness, admitted ; St. 1903, § 4643, quoted post, § 1413, and providing that the consent of
the defendant in criminal cases shall be necessary, applies in that respect "alone to the testi-
mony .of living witnesses so taken"). 1906, Austin v. Com., 124 Ky. 55, 98 S. W. 295
(former testimony).
Me.: 1906, State v. Herlihy, 102 Me. 310, 66 Atl. 643.
Mich.: 1910, People v. Droste, 160 Mich. 66, 125 N. W. 87 (illness; deposition).
N. Y. : 1891, People v. Fish, 125 N. Y. 136, 26 N. E. 319. 1914, People v. Qualey, 210 N. Y.
202, 104 N. E. 138 (testimony before a magistrate under C. C. P. § 8 ; for the further point
as to using the official stenographic report, see n. 7, infra).
OM.: 1910, Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561 (approving the above text).
1911, Warren v. State, 6 Okl. Cr. 1, 115 Pac. 812 (testimony at preliminary examination).
Or. : 1909, State v. Walton, 53 Or. 557, 99 Pac. 431, 101 Pac. 389 (following Mattox v. U. S.).
1911, State V. Myers, 59 Or. 537, 117 Pac. 818 (following State v. Walton, supra).
S. D.: 1909, State v. Heffernan, 24 S. D. 1, 123 N. W. 87 (former testimony; leading
opinion by McCoy, J.).
Tex.: 1907, Porch v. State, 51 Tex. Cr. 7, 99 S. W. 1122 (testimony of a deceased witness
before the committing magistrate, received; "we therefore, without a further tedious dis-
cussion of the question, overrule the majority opinion in the Cline case [cited supra, n. 4],
and reaffirm the opinions of this Court rendered prior to the Cline case as the law" ; this
was a sensible and praiseworthy attitude, meant to set right once for all the law in this State ;
this decision therefore practically repudiates also on this point Smith v. State, 48 Tex. Cr.
65, 85 S. W. 1153, cited more fully post, § 1405, n. 1). 1908, Pratt v. State, 53 Tex. Cr.
291, 109 S. W. 138 (former testimony of deceased witness, admitted; Davidson, P. J.,
diss., on the authority of Cline v. Statfe, but ignoring Porch v. State). 1908, Nixon v.
State, 53 Tex. Cr. 325, 109 S. W. 931 (Porch v. State confirmed). 1908, Hobbs v. State,
63 Tex. Cr. 76, 112 S. W. 308 (former testimony of witness now in another jurisdiction,
admitted; Davidson, P. J., still dissenting; his history is unsound). 1911, Kemper v.
State, 63 Tex. Cr. 1, 138 S. W. 1025 (deceased witness at former trial of same case ; Scott,
Sp. J., for the majority : "We therefore adhere to the majority opinion of the Court as
announced in the Cline Case, and expressly overrule the Porch Case and Hobbs Case and
the Pratt Case, and in fact every other case in Texas which has announced a contrary rule" ;
the opinion vainly wrestles with the history and reason of the subject, and is a futile effort
to turn this Court backward from the sensible rule, by invoking the supposed laws of Moses
and of Rome ; Prendergast, diss., files notice that whenever the majority is otherwise con-
stituted "this decision may be overruled"). 1912, Robertson v. State, 63 Tex. Cr. 216,
142 S. W. 533 ("Kemper v. State is ov^ruled on this point, and Cline v. State and all cases
following it are again overruled," Davidson, P. J., diss. ; thus the see-saw goes on).
U. S. : 1906, U. S. v. Greene, 146 Fed. 796, D. C.
Utah: 1902, State v. King, 24 Utah 482, 68 Pac. 419. 1910, State v. Vance, 38 Utah 1,
110 Pac. 434.
Wis. : 1907, Spencer v. State, 132 Wis. 509, 112 N. W. 462 (testimony before a committing
magistrate ; usable where the witness is deceased or permanently incapacitated mentally
or physically; rule for a witness out of the jurisdiction, not stated; careful opinion by
Winslow, J.).
[Note 6; add:]
1908, Jones v. State, 130 Ga. 274, 60 S. E. 840.
[Note 7, par. 1 ; add, under Accord :]
1904, Sokel v. People, 212 111. 238, 72 N. E. 382 (following Tucker v. People).
1914, People v. Qualey, 210 N. Y. 202, 104 N. E. 138 (Laws 1912, c. 390, April 15, adding
§ 2216, C. C. P., for the admission of the official stenographic report of testimony before
a magistrate is constitutional).
308
GENERAL PRINCIPLE § 1401
[Note 7 — continued]
1907, State v. Dowdy, 145 N. C. 432, 58 S. E. 1002 (illegal sale of liquor; U. S. revenue
collector's certified copy of a Federal liquor license record, admitted; following State v.
Behrman).
1911, Dowdell V. U. S., 221 U. S. 325, 31 Sup. 590 ("where a clerk, upon suggestion of the
diminution of the record, orders a clerk of the court below to send up a more ample record,,
or to supply deficiencies in the record filed," the provision of the Constitution is not appli-
cable ; here a clerk's certified copy of entries showing for the Supreme Court the defendant's:
arraignment in the lower court at Samar, P. I.). 1912, Heike v. U. S., C. C. A., 192 Fed.
83 (ofiicial records of U. S. weighers in revenue department, admitted).
[Note 5, par. 2 ; axld :] •
Col. : 1904, People v. Buckley, 143 Cal. 375, 77 Pac. 169 (testimony before the magistrate,
admitted for the State; no cases cited). The statute of 1905, c. 540 (quoted post, § 1411,
n. 1), may be intended to cure in part the anomaly in this State. Compare here also the
peculiar local rulings imder the statute for using a stenographic report of the testimony
{post, § 1669).
[Note 5, at the end ; add :]
In Indiana, the following statute applies : St. 1905, p. 584, § 242 (a defendant's request
or notice, in a criminal case, to take depositions "shall be deemed a waiver of his constitu-
tional right to object to the taking of depositions by the State," etc.).
The Sixth Federal Amendment, quoted ante, § 1397, n. 1, does not control State legisla-
tion : 1904, West v. Louisiana, 194 U. S. 258, 24 Sup. 650 (cross-examined testimony before
a committing magistrate, the witness now being permanently a non-resident, offered against
a defendant). The only Federal question, therefore, can be whether there was due process
of law under the Fourteenth Amendment, and this is not thereby violated ; West v. Louisi-
ana, supra; Felts v. Murphy, cited ante, § 1393, n. 3a.
Whether disbarment proceedings are criminal, in the constitutional sense, has usually
been answered in the negative :
1905, State v. McRae, 49 Fla. 389, 38 So. 605.
1905, State v. Mosher, 128 la. 82, 103 N. W. 105.
1899, Re Wellcome, 23 Mont. 260, 58 Pac. 7ll.
[Note 9, par. 1; add:]
1910, State v. Vanella, 40 Mont. 326, 106 Pac. 364.
1912, Diaz v. U. S., 223 U. S. 442, 32 Sup. 250 (testimony at the preliminary investigation,
offered by the accused).
[Note 9, par. 2; add:]
1904, Schick v. U. S., 195 U. S. 65, 24 Sup. 826 (said obiter that Art. 6 of the U. S Constitu-
tion can be waived). 1909, Mullen v. U. S., 212 U. S. 516, 29 Sup. 330 (holding the same
for U. S. Rev. St. 1878, § 1624, providing for courts martial, in so far as that provision is
intended to be analogous to the constitutional right).
1912, Diaz v. U. S., 223 U. S. 442, 32 Sup. 250 ; and cases cited post, § 2595, n. 6.
Whether the 6th Amendment applies to criminal conternpts: 1912, Merchants' S. & G.
Co. V. Board of Trade, 8th C. C. A., 201 Fed. 20, 29 (in criminal contempt proceedings, tte
defendant is not entitled to be confronted with the witnesses against him).
§ 1401. Preliminary Distinctions (Taking Depositions, etc.).
[Text, p. 1761, 1. 11 of par. (c) ; add a new note 2 :]
2 The effect of those statutes which abolish all limitations on toHrej' depositions before
trial is virtually to make a radical change in another part of the law, viz. the rule against
309
§ 1401 HEARSAY RULE
{Text, p. 1761 — continued]
obtaining discovery from a witness before trial. The eases dealing with that aspect of the
statutes are placed under that head, post, §§ 1850-1856.
§1403. Specific Cases of UnaTailability ; (1) Death.
[NoU\,\. 1; add:]
1908, Carr v. American Locomotive Co., 29 R. I. 276, 70 Atl. 196.
§ 1404. Witness Unavailable; Absence from Jurisdiction.
[Note 1 ; add :]
1911, U. S. V. Cohen, D. C. So. D. N. Y., Oct. 26, M. S., Hough, J. (witness for the prose-
cution, released after former testimony, and then disappearing; former testimony ad-
mitted).
[NoteZ; add:]
1914, Spencer, J., in Levi v. State, — Ind. — , 104 N. E. 765.
[Note 4:-, add:]
1914, Spencer, J., in Levi v. State, — Ind. — , 104 N. E. 765.
Contra (i. e. holding that this is unnecessary) : 1882, Stebbins v. Duncan, 108 U. S. 32,
2 Sup. 313. 1905, Toledo Traction Co. v. Cameron, 137 Fed. 48, 61, 69 C. C. A. 28.
[Note 5; add:]
Ala. : 1904, Sims v. State, 139 Ala. 74, 36 So. 138 (a witness to a dying declaration, shown
merely to have gone to Texas; former testimony excluded). 1904, Wilson v. State, 140
Ala. 43, 37 So. 93 ("residence and indefinite absence from the State" suffices). 1904,
Kirkland v. State, 141 Ala. 45, 37 So. 352 (removal permanently or for an indefinite time
suffices). 1904, Southern R. Co. v. Bonner, 141 Ala. 517, 37 So. 702 (similar).
Ark.: 1905, Petty v. State, 76 Ark. 515, 89 S. W. 465. 1909, Wimberly v. State, 90 Ark.
514, 119 S. W. 668. 1910, Poe v. State, 94 Ark. 172, 129 S. W. 292 (witness "beyond the
jurisdiction").
Ga.: 1906, Taylor ». State, 126 Ga. 557, 55 S. E. 474 (absence from the county, being last
heard from within the State, does not suffice, under P. C. 1895, § 1001). 1912, Crumm
11. Allen, 11 Ga. App. 203, 75 S. E. 108 (where the witness is the party himself offering his
former testimony, of course his voluntary absence from the State does not make him inac-
cessible). 1912, Taylor v. Felder, 11 Ga. App. 742, 76 S. E. 75 (under Civ. C. § 5773, a
witness residing in an adjoining county within the State is not "inaccessible").
Ind.: 1910, Reichers v. Dammeier, 45 Ind. App. 208, 90 N. E. 644 (non-resident). 1914,
Levi V. State, — Ind. — , 104 N. E. 765 (general principle recognized ; but here former testi-
mony was held improperly admitted because no effort was made other than by subpoena
to obtain the witness' presence or their depositions; unsound).
la. : 1911, State v. Brown, 152 la. 427, 132 N. W. 862 (settling the rule for criminal cases).
Kan. : 1904, State v. Nelson, 68 Kan. 566, 75 Pac. 505. 1904, State v. Harmon, 70 Kan.
476, 78 Pac. 805 (absence from the State suffices).
1908, State v. Simmons, 78 Kan. 872, 98 Pac. 277. 1912, State v. Gentry, 86 Kan. 534, 121
Pac. 352.
La. : State v. Kline, 109 La. 603, cited supra (affirmed on writ of error, under the U. S. 14th
Amendment, s. v. West v. Louisiana, U. S., cited infra). 19Q4, State v. Sejours, 113 La. 676,
37 So. 599 (permanent absence from the State suffices).
Mich.: 1907, Dolph v. Lake Shore & M. S. R. Co., 149 Mich. 278, 112 N. W. 981.
Minn. : 1911, Finnes v. Selover B. Co., 114 Minn. 339, 131 N. W. 371 (admissible if "not a
310
GENERAL PRINCIPLE § 1405
[Note 5 — conlirmed]
resident of the State, and without the jurisdiction of the court"). 1911, Gutmann v.
Klimek, 116 Minn. 110, 133 N. W. 475 (residence in another State ; here the plaintifif's own
testimony at a former trial, offered in his own behalf; not decided).
Mo. : 1913, State v. Butler, 247 Mo. 685, 153 S. W. 1042 (testimony before committing
magistrate, admitted for defendant, though Rev. St. 1909, §§ 5056, 5033, do not specify
any conditions on which such testimony may be used).
Mont.: 1909, O'Meara v. McDermott, 40 Mont. 38, 104 Pac. 1049 (witness in California;
admitted under Rev. Codes, § 7887). 1909, Motte & K. D. Co. v. Lowrey, 39 Mont. 124,
101 Pac. 966 (preliminary examination).
Okl. : 1910, Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561. 1913, Atchison T. & S. F. R.
Co. V. Baker, 37 Okl. 48, 130 Pac. 577.
Or. : 1909, State v. Walton, 53 Or. 557, 99 Pac. 431, 101 Pac. 389.
R. I.: 1908, Kolodrianski v. American Locomotive Co., 29 R. I. 127, 69 Atl. 505.
Tex.: 1914, Millner v. State, — Tex. Cr. — , 162 S. W. 348.
U. S. : 1904, West v. Louisiana, 194 U. S. 258, 24 Sup. 650 (permanent non-residence suffices,
at least under the fourteenth Amendment ; here applied to testimony before a committing
magistrate offered against a defendant). 1905, Toledo Traction Co. v. Cameron, 137 Fed.
48, 57, 69 C. C. A. 28 (former testimony of a witness in Indiana, out of the jurisdiction of
this court and more than 100 miles away, admitted).
Utah : 1910, State v. Vance, 38 Utah 1, 1 10 Pac. 434.
[Note!; add:]
In Virginia, Finn's Case, supra, was partly repudiated and its validity for the present pur-
pose left undetermined, in Parks v. Com., 109 Va. 807, 63 S. E. 462 (1909).
[Note 8, par. 1 ; add, under Accord:]
Can.: 1908, Rogers v. Troop, 43 N. Sc. 279 (trial Court decides, under Order 35, R. 17).
U. S. : 1873, Burton v. Driggs, 20 Wall. 125 (lost deposition of a witness living in another
State and more than 100 miles away; contents allowed to be proved). 1882, Stebbins v.
Duncan, 108 U. S. 32, 2 Sup. 313 (deposition burned ; Burton v. Driggs approved).
For the case of a witness once present during the time of trial, hut subsequerMy departing,
see post, § 1415.
[Note 8, par. 2; add:]
Contra: 1911, R«dhouse v. Graham, 20 Haw. 717 (plaintiff's own former testimony ex-
cluded, where he had left the jurisdiction before trial without any explained reason).
§ 1405. Same : Disappearance, etc.
[Note 1, par. 1 ; add, under Accord:]
Ont. : 1907, Cuff v. Frazee S. & C. Co., 14 Ont. L. R. 263 (witness supposed to have gone to
the U. S.).
Ala. : 1905, Bardin v. State, 143 Ala. 74, 38 So. 833 (mere inability to find, after searching
the county of usual residence, insufficient). 1906, Woodstock Iron Works v. Kline, 149
Ala. 391, 43 So. 362. 1913, Pope v. State, — Ala. — , 63 So. 71 (former testimony; ina-
bility to find after diligent search is sufficient to admit; here a defendant's witness).
Ark. : 1913, Paxton v. State, — Ark. — , 157 S. W. 396.
Cal. : 1899, People v. Plyler, 126 Cal. 379, 58 Pac. 904 (trial Court's determination controls
in applying P. C. § 686, cited post, § 1411). 1904, People v. Lewandowski, 143 Cal. 574,
77 Pac. 467 (same). 1904, People v. Buckley, 143 Cal. 375, 77 Pac. 169 (testimony before
the magistrate, admitted under P. C. § 686; here the witness was in Mexico). 1904,
People V. Barker, 144 Cal. 705, 78 Pac. 266 (similar).
311
§ 1405 HEARSAY RULE
[Note 1 — coniinued]
Fla. : 1904, Dorman v. State, 48 Fla. 18, 37 So. 561 (witness for the defendant ; former
testimony not admitted on the facts). 1908, Putnal r.- State, 56 Fla. 86, 47 So. 864.
Ga. : 1907, Robinson v. State, 128 Ga. 254, 57 S. E. 315 (due diUgence not used, on the facts).
Haw. : 1907, Tsuruda v. Farm, 18 Haw. 434 (witness subpoenaed in two places and not
found; showing held insufficient on the facts).
Ind. : 1911, Wilson v. State, 175 Ind. 458, 93 N. E. 609 (not found in or out of the State).
Mick.: 1912, Krouse v. Detroit U. R. Co., 170 Mich. 438, 136 N. W. 434 ("the proofs
should be full and convincing").
Mo. : 1904, State v. Riddle, 179 Mo. 287, 78 S. W. 606 (due diligence not found on the
facts).
Okl. : 1911, Warren v. State, 6 Okl. Cr. 1, 115 Pac. 812 (witnesses not to be found, and last
heard from in Arkansas). 1913, Edwards v. State, — Okl. Cr. — , 131 Pac. 956 (preliminary
examination).
Tex.: 1905, Smith v. State, 48 Tex. Cr. 65, 85 S. W. 1153 (former testimony of an absent
person, excluded,; this Court here appears to be unable clearly to tell the profession
just what rules it means to lay down on these points ; from this opinion it is impossible to
say whether the exclusion is (1) because the witness was not sought for with sufficient dili-
gence, or (2) because mere inability to find is never enough, but only absence froin the ju-
risdiction, or (3) because the Texas statutes for depositions, post, §§ 1411, 1413, are the only
sources of admissibility, and under them no provision at all is made for using testimony at
a former trial in a criininal case, or (4) because the use of former testimony in a criminal
case is always unconstitutional, under Cline «. State, cited ante, § 1398, n. 4 ; the only things
fairly apparent from the opinion are that Sullivan v. State, supra, is regarded as overruled,
in Evans v. State, 12 Tex. App. 370, on some point or other, and that Cline v. State, supra,
may be still law for some purpose or other, though its status is doubtful on another point,
ante, § 1398, n. 5).
The following case is peculiar and unsound :
1908, Driggers v. U. S., 21 Okl. 60, 95 Pac. 612 (witness said to be dead ; the marshal's
return on the subpcena and the testimony of others that they "had been told he was dead,"
held not enough ; this is a sample of the courts twiddling thumbs over a game of checkers
while the world clamors for justice to be done on murderers ; the question here. Was Jim
Saddler dead ? could probably have been answered positively in two minutes if the Court
had gone about it as directly as they would go about it in their ordinary business affairs.
Is it necessary for Judicial Justice to shut itself off from the world in a temple and perform
a sort of legal-religious ritual in order to determine the answers sought by its suppliants ?)
See the general question of evidencing death considered ante, §§ 158, 667.
[Note 1, par. 1 ; add, under Contra:]
1826, Wilbur v. Selden, 6 Cow. 164 (former testimony of a witness who could not be found
and had declared that he was going to Pennsylvania, excluded).
[Note 1, par. 2, 1. 4; add:]
and for attesting witnesses (ante, § 1313), persons not heard from {ante, §§ 158, 664), and slate-
mefits of intent (post, § 1725).
§ 1406. Same : Illness, etc., preventing Attendance. .
[Note 1; add:]
Contra, for a party's examination :
1912, Park v. Schneider, Alta. S. C, 6 D. L. R. 451 (plaintiff lived in Ohio, and was too ill
to travel ; his examination on discovery by defendant was taken, with leave to treat it as
on a commission; the plaintiff was not allowed to use it on the trial, the credibility of the
312
GENERAL PRINCIPLE § 1409
[Note 1 — continued]
witness being important ; this erroneous ruling indicates a failure to perceive that a party's
examination taken by an opponent stands exactly on the footing of a deposition for present
purposes; compare the similar fallacy in Johnson v. Birket, Ont., cited anie, § 1389).
[NoteZ; add:]
1908, Smith v. Moore, 149 N. C. 185, 62 S. E. 892 (approving Berney v. Mitchell, and tak-
ing the singular view that a deposition is better than a stenographic report).
[Note 5; aM:\
1910, People v. Droste, 160 Mich. 66, 125 N. W. 87 (woman about to be confined; testi-
mony before the examining magistrate, admitted ; careful opinion by Brooke, J. ; virtually
overruling Siefert v. Siefert, which held that the illness must be permanent).
1908, Smith ii. Moore, 149 N. C. 185, 62 S. E. 892 (mere doctor's certificate that witness
was "too unwell to attend court," held not sufficient on the facts).
1907, Spencer v. State, 132 Wis. 509, 112 N. W. 462 (see the citation ante, § 1398, n. 5).
[Note%; add:]
1908, Stewart's Case, 1 Cr. App. 57 (statute applied, the witness being ill).
§ 1407. Same : Attendance prevented by (6) Imprisonment, etc. "^
[Note 2; add:]
1910, Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561 (life prisoner in a Federal penitentiary
out of the State, the prison authorities having refused the request of the State Governor to
bring the prisoner to testify).
[Note 6; under Repudiating it; add:]
1913, Rio Grande So. R. Co. v. Campbell, — Colo. — , 136 Pac. 68 (new trial 5 years later,
but the witness a young man of unimpaired health and mind).
§ 140.8. Same : (9) Insanity, etc. ,
[Note 2; add:]
1913, Atwood V. Atwood, 86 Conn. 579, 86 Atl. 29.
§ 1409. Same : Disqualification by Infamy.
[Note 2, par. 1; add:]
1907, Greenlee v. Mosnat, 136 la. 639, 111 N. W. 996 (former testimony of a party now dis-
qualified by the opponent's death; St. 1898, c. 9, § 1, quoted post, § 1669, n. 2, held not to
£iltGr*this result).
1909, Sayre v. Woodyard, 66 W. Va. 288, 66 S. E. 320.
[Note 4; add:]
Colo. St. 1911, c. 229, p. 676, June 2 (amending Rev. Sfa 1908, § 7267 ; in any suit in which
one party is disqualified by reason of death, etc. of the other, and "the defendant in any
such suit has previously been required to testify" under Rev. St. §§ 7080, 7253, the report
of testimony may be read for the defendant, "so far as the same relates to the estate" etc.).
1911, State V. Stewart, 85 Kan. 404, 116 Pac. 489 (husband privileged not to testify against
his wife, and claiming his privilege ; his former testimony, admitted ; able opinion by Johns-
ton, C. J.).
Conversely, the deposition of one who hecmies competent after taking and before offering
should be excluded : contra :
313
§ 1409 HEARSAY RULE
[Note 4 — eontimied]
1912, Howard v. Strode, 242 Mo. 210, 146 S. W. 792 (deposition of T. J. M., alleged to be
husband of plaintiff, offered against her, a divorce having been granted to T. J. M. after
deposition taken but before offered ; admitted).
For the effect of time on privilege, see post, § 2237 (marital privilege).
§ 1410. Same : (11) Disqualification by Infamy.
[Note 1; add:]
1910, Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561 (approving the above text).
§ 1411. Statutes affecting Depositions de bene esse.
[Note 1 ; add :]
Eng. : 1894, St. 57 & 58 Vict. c. 41, § 16 (Prevention of Cruelty to Children ; like St. 4 Edw.
VII, infra, with an additional clause that the Court must be satisfied that the evidence
of the child "is not essential to the just hearing of the case"). 1904, R. v. Hale, 20 Cox Cr.
739 (St. 57 & 58 Vict. c. 41, § 16, construed as to the child's evidence being "essential").
1904, St. 4 Edw. VII, c. 15, § 13 (Prevention of Cruelty to Children Act; in trials for
offences under this act, "where a justice is satisfied by the evidence of a registered medical
practitioner that the attendance before a court of any child," in respect of whom an offence
of cruelty is charged, "would involve serious danger to its life or health," the sworn deposi-
tion of the child may be taken) ; ib. § 14 (similar provision for the admission of a child's
depositions taken under this or certain other acts). St. 1908, 8 Edw. VII, c. 67, §§28, 29
(Children Act ; where the attendance at court of a "child or young person," the victim of
the alleged offence, "would involve serious danger to the life or health of the child or young
person," the deposition may be taken and used).
Dom. St. 1913, 3-4 Geo. V, c. 13, § 30 (amending Crim. Code, 1906, § 999 ; allowing
former testimony or deposition to be used also "if such person refuses to be sworn or to give
evidence").
Br. C. St. 1903^, 3 & 4 Edw. VII, c. 15, §§ 69, 70 (quoted ante, § 1380). St. 1905, 5 Edw.
VII, c. 14, § 95 (county courts; like Rev. St. 1897, c. 52, § 134).
Newf. St. 1904, c. 3, Rules of Court 33, par. 1 (a judge may order that an affidavit be read
"on such conditions" as may be thought reasonable, or that the attendance of a witness
may "for some sufficient cause" be dispensed with; but where the other party "bona fide
desires the production of a witness for cross-examination" and "such witness can be pro-
duced," no affidavit is to be ordered) ; ib. par. 18 (unless by special order no deposition is
to be used unless "the deponent is dead, or beyond the jurisdiction of the court, or resident
in Labrador, or is unable from sickness or other infirmity to attend the trial").
Yukon Consol. Ord. 1902,, c. 17, Ord. XXVI, R. 262 (like Ont. Rules of Court, § 483) ; R.
266 (like N. W. ,Terr. Rule 267).
P. E. I. St. 1910, c. 8, § 48 (chancery proceedings ; deposition before a master shall not be
read without consent "unless the inability of the witness to personally attend exists to the
satisfaction of the Court at the time such evidence is offered"). St. 1910, c. 3, § 45 (special
provision in election trials for a witness who "intends to leave the Province and cannot
attend the trial").
Cal. St. 1905, c. 134 (amends C. C. P. 1872, § 2021, by adding, under par. 2, "or resides in
the county but more than fifty miles distant from the place of trial or hearing by the nearest
usual traveled route"). St. 1905, c. 540 (amends P. C. 1872, § 882, applying to depositions
for the prosecution before the committing magistrate, by providing that "such deposition
may be used upon the trial of the defendant, except in cases of homicide, under the same
conditions as mentioned in § 1345," but this section is not to apply to an accomplice).
St. 1907, c. 392, p. 731, Mar. 20, § 2 (adding a new C. C. P. § 2022; quoted ante, § 1387).
Ga. St. 1908, No. 568, p. 84, Aug. 17 (rules for deposition without a commission; "if the
314
GENERAL PRINCIPLE § 1411
[Note 1 — continued]
reasons tor taking the deposition cease to exist before trial, such deposition shall not be used
in the case").
Ida. : 1908, State v. Zarlenga, 14 Ida. 305, 94 Pac. 55 (a deposition taken for the prosecu-
tion, under Rev. St. 1887, § 7588; the conditions requisite to be shown, specified in fuU;
i. e. due taking before a magistrate, notice, inability to attend, and due diligence).
Kan. St. 1905, c. 526, § 1 (depositions may be used in probate proceedings in the same
manner as under the Code of Civil Procedure).
La. : 1904, Thibodeaux v. Thibodeaux, 112 La. 906,36 So. 800 (deposition excluded for lack
of proper notice). St. 1908, No. 105, p. 162, July 1 (no deposition of "a fugitive from
justice from this State" shall be admissible). St. 1910, No. 176, p. 261, July 6 (testimony
of witnesses residing out of the parish may be taken by deposition in civil cases).
Me. St. 1909, c. 159, p. 162, Mar. 29 (adding to Rev. St. c. 109, § 4, par. 5 (numbered (6)
above) "or that he has become so infirm or sick since the taking of the deposition as to be
unable to attend the place of trial").
Mich.: 1908, Nolan v. Garrison, 151 Mich. 138, 115 N. W. 58 (Comp. St. 1897, § 10136
above, and § 10188 relating to chancery causes, compared, and held not to be inconsistent ;
both methods are available; under § 10136 the taker need not wait until 10 days after
issue joined).
N. C. Rev. 1905, § 1645 (like Code, § 1358, adding under par. 96, "or the superintendent
or any physician" of a State insane hospital). Rev. 1905, § 1654, St. 1889, c. 428 (deposi-
tions taken in certain qiio warranto proceedings are admissible "without regard to the
place of residence of such witness or distance of residence from said place of trial"). Rev.
1905, § 1655 (rules for taking a deposition in the State in aid of a suit without the State).
Or. St. 1909, c. 58, p. 105 (amending § 826 of Bell. & C. Annot. Codes & Stats.).
Pa. St. 1909, No. 167, p. 258 (witnesses out of the State but in the U. S., in criminal cases).
St. 1911, June 8, p. 709 (witnesses residing in another State or foreign country).
iS. C. St. 1909, No. 128, p. 206 (in trials for rape, the deposition of the female may in the
judge's discretion be admitted "as though such testimony had been given orally in court").
S. D. St. 1913, c. 370, p. 609 (amending P. C. 1903, § 802 ; deposition of a convict in a pen-
itentiary may be taken).
U. S. : 1904, Zych v. American Car & F. Co., 127 Fed. 723, 728, C. C. A. (cited ante, § 1381,
n. 1). St. 1909, Feb. 16, c. 130, No. 230 (35 Stat. L. p. 620), § 16 (rules for depositions in
naval courts). St. 1911, Mar. 3, c. 231, Judicial Code, §§ 167, 168 (testimony for Court of
Claims; superseding Rev. St. §§ 1081, 1082). Equity Rules 1912, Rules 46-48.
Utah St. 1905, c. 41, Mar. 7 (depositions taken out of the State on oral interrogatories "may
be used ... as now provided by the laws of this State").
Va. St. 1904, c. 18, § 3 (deposition of the female in rape or attempted rape may be read with-
out accounting for her absence ; an unwise exception).
Wash. St 1909, c. 249, p. 907, § 54 (right of confrontation affirmed ; "provided that when-
ever any witness whose deposition shall have been taken pursuant to law by a magistrate,
in the presence of the defendant and his counsel, shall be absent and cannot be found when
required to testify upon any trial or hearing, so much of such deposition as the Court shall
deem admissible" shall be read).
Wis. St. 1913, c. 336, p. 367 (Stats. § 4086, amended so as to permit the State to take depo-
sition of a witness "within the State who is in imminent danger of death").
[Text, p. 1777, line 2; add a new note 2, after "statute" :]
'Accord: 1913, State v. Butler, 247 Mo. 685, 153 S. W. 1042 (citing the text above).
1905, Toledo Traction Co. v. Cameron, 137 Fed. 48, 58, 69 C. C. A. 28 (the term "except"
in U. S. Rev. St. 1878, § 861, "was simply an opening for letting in an addition to the powers
of the Court as they had been customarily exercised" ; here admitting the former testimony
of a witness out of the jurisdiction, though the statute names only depositions ; good opin-
ion by Severens, J.).
315
§ 1412 HEARSAY RULE
§ 1412. Statutes afEecting Depositions in perpetuam memoriam.
[Note 1; add:]
Ky. St. 1904, c. 79 (real estate controversies; no conditions specified).
U. S. : Rev. St. 1878, § 866 ("In any case where it is necessary in order to prevent a fail-
ure or delay of justice, any of the courts of the United States may grant a dedimus potestatum
to take depositions according to common usage ; and any circuit court, upon application
to it as a court of equity, may according to the usages of chancery direct depositions to be
taken in perpetuam memoriam," etc., and Rev. St. §§ 863-865 for de bene depositions shall
not apply).
1908, Westinghouse Machine Co. v. Electric S. B. Co., C. C. N. J., 165 Fed. 992 (statute
applied, and order refused).
§ 1413. Statutes afEecting Testimony at a Former Trial.
[Note 1; add:]
la. St. 1898, p. 16, c. 9, § 1, Code Suppl. 1902, § 245a (quoted more fully anie, § 1387,
n. 2, post, § 1669, n. 2 ; admits former testimony with "the same force and effect as a dep-
osition").
Kan. St. 1905, c. 494, § 1 (court stenographer's transcript of former testimony, admissible
like a deposition; cited more fully post, § 1669).
Ky.: 1904, Fuqua v. Com., 118 Ky. 578, 81 S. W. 923 (the proviso in the statute for the
consent of the defendant in a criminal case applies "alone to the testimony of living wit-
nesses so taken" ; a better construction would be that it applies only to the use of the
official report, leaving the sworn testimony of the stenographer on the stand unaffected
by the statute).
La. : A peculiar rule has been introduced in Louisiana : St. 1908', No. 247, p. 368, July 8 (on a
new trial in a civil case, all the testimony at the former trial, if written down, may be used,
without recalling the witnesses, except so far as the Coiu't may permit on request of a party).
N. Y. St. 1893, c. 595, and St. 1899, c. 352 (amending C. C. P. § 830, but not on this point;
quoted ante, § 1387,'n. 2). St. 1911, c. 764, p. 2029 (amending C. C. P. § 830). St. 1913,
c. 542, p. 1465 (amending Consol. L. c. 27, St. 1909, c. 32, § 93 ; on second or later appli-
cation for habeas corpus by insane person, testimony at any former hearing may be used
without calling the witnesses).
N. C. Rev. 1905, § 3121, St. 1899, c. 680, § 2 (when a subscribing witness "shall die or be
absent beyond the State," the affidavits and proofs taken in common form shall be prima
facie evidence). Rev. 1905, § 3205 (like Code 1883, § 1157). ),
Tex. : 1905, Smith v. State, 48 Tex. Cr. 65, 85 S. W. 1153 (cited more fully ante, § 1405 n.).
Wash. St. 1905, c. 26 ("The testimony of any witness, deceased, or out of the State, or for
any other sufficient cause unable to appear and testify," when written and certified as in
§ 1669, post, may be used in any civil case). St. 1913, c. 126, p. 386, § 6 (official reporter's
certified transcript, admissible in any civil cause "when satisfactory proof is offered to the
judge presiding that the witness originally giving such testimony is then dead or without
the jurisdiction of the court," subject to objections as if he were present testifying).
Wis. St. 1911, c. 65, p. 71 (amending Stats. § 4141a, by extending it to the testimony of
"any witness who is absent from the State," taken in any "action or proceeding except in
a default action or proceeding where service of process was obtained by publication," offered
in any "retrial, other action, or proceeding," etc.).
§ 1414. Proof of Unavailability of Witness.
[Note 1; add:]
Contra, but unsound : 1904, Fitch v. Traction Co., 124 la. 665, 100 N. W. 618 (former
testimony).
1909, Van Norman v. Modern Brotherhood, 143 la. 536, 121 N. W. 1080 (former testimony).
316
GENERAL PRINCIPLE § 1416
[Note 2 ; add, under Accord:]
1906, Dolbeer's Estate, 149 Cal. 227, 86 Pae. 695 (deposition of a non-resident taken un-
der C. C. P. § 2024; continued non-residence presumed).
1904, Taylor v. Taylor's Estate, 138 Mich. 658, 101 N. W. 832 (age, and inability to
travel). '
1904, Chicago B. & Q. R. Co. v. Krayenbuhl, 70 Nebr. 766, 98 N. W. 44 (non-residence in
Iowa presumed to. continue).
[Note 2 ; add, under Contra :] ' ^
^1908, O'Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S. W. 705 (non-residence in the
county must be shown by the party offering the deposition ; one judge diss.).
1904, Carter v. Wakeman, 45 Or. 427, 78 Pac. 362 (because the statute, cited ante, § 1411,
n. 1, expressly requires that proof be made that the witness "still continues" unavailable).
§ 1415. If Witness is Available, etc.. Deposition is not Usable.
[Note 1; add:]
4904, Handy v. Smith, 77 Conn. 165, 68 Atl. 694.
1904, Lanza v. LeGrand Quarry Co., 124 la. 659, 100 N. W. 488 (testimony at a former
trial, assimilated to a deposition, under St. 1898, 27 Gen. Ass. c. 9, excluded, the witnesses
being present).
1906, State v. Coleman, 199 Mo. 112, 97 S. W. 574 (testimony at a former trial, excluded, the
witness being present in court).
1904, Hughes v. Chicago, St. P. M. & O. R. Co., 122 Wis. 258, 99 N. W. 897.
[Note 2; add:]
1907', Dover v. Greenwood, C. C. R. I., 154 Fed. 855 (patent application ; testimony taken
in interference proceedings, refused to be made a part of the record, on the present principle).
[Note 3, add:]
1906, Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695 (trial began Nov. 2, deposition was taken
Nov. 11, witness left the State Dec. 5, deposition was offered Dec. 7 ; admitted).
1904, Flannery v. Central B. Co., 70 N. J. L. 715, 59 Atl. 157 (a deposition of the plaintiff
taken by consent was offered and received on the opening of the trial ; on the second day
the plaintiff appeared in court ; after close of the plaintiff's case, a motion to strike out the
deposition was made by the defendant ; held, that the defendant's unexplained delay, was
a waiver of objection).
[Note 5; add:]
1908, Georgia F. & A. R. Co. v. Sasser, 4 Ga. App. 276, 61 S. E. 505 (like Western & A. R.
Co. V. Bussey).
1904, Taylor v. Taylor's Estate, 138 Mich. 658, 101 N. W. 832 (under Comp. L. 1897,
§§ 10136-10142, quoted ante, § 1411, the judge's discretion controls).
1914, Holt V. Guergin, — Tex. — , 163 S. W. 10 (left to the trial Court's discretion; the
opinion shows an imperfect apprehension of the subject).
§ 1416. Rule not applicable to Deposition of Party- Opponent.
[Note 1; add:]
1874, Hatch v. Brown, 63 Me. 410, 419.
1911, Merrill v. Leisenring, 166 Mich. 219, 131 N. W. 538 (opponent's former testimony
used, although he was at the later trial disqualified).
1907, Southern Bank v. Nichols, 202 Mo. 309, 100 S. W. 613.
1887, Meier v. Paulus, 70 Wis. 165, 35 N. W. 301. 1904, Hughes ». Chicago, St. P. M. &
317
§ 1416 HEARSAY RULE
[Note 1 — continued]
O. R. Co., 122 Wis. 268, 99 N. W. 897 (rule for parties not applicable to employees of a
corporation). 1905, Johnson v. St. Paul & W. C. Co., 126 Wis. 492, 105 N. W. 1048 (rule
applied to an officer of a corporation, distinguishing Hughes v. R. Co., supra). 1906, Clark
Co. «. Rice, 127 Wis. 451, 106 N. W. 231 (similar). 1906, Anderson v. Chicago Brass Co.,
127 Wis. 273, 106 N. W. 1077 (like Hughes v. R. Co., supra).
Wis. St. 1913, c. 246, p. 259 (amending Stats. § 4096, so as to make it plain that the answers
on examination of an adverse party or "any of the persons mentioned" may be received
in evidence from the taker "notwithstanding the person who was so examined may be
present at the trial or proceeding"). '
But an oral answer which has been stricken out of the written deposition before signing
cannot be used at all : 1904, Young v. Valentine, 177 N. Y. 347, 69 N. E. 643.
[Note 7; oM:]
1911, Carpenter v. Ashley, 15 Cal. App. 461, 115 Pac. 268 (malicious prosecution by indict-
ment for perjury in a suit of M. v. R. ; E.'s testimony in the suit of M. v. R. admitted as
bearing on probable cause for the indictment).
[Note 8 ; add a new paragraph :]
For a similar question arising in suits by a surety or joint-tortfeasor against principal or
co-tortfeasor for contribution to a claim sued for and paid, see ante, § 1387, n. 5.
§ ] 417. Exceptions to the Rule, for Chancery Proceedings, etc.
[NoU3; add:]
So in patent proceedings : 1910, Dover v. Greenwood, C. C. R. I., 177 Fed. 946 (bill in
equity over a patent; testimony taken in interference proceedings in patent office held
inadmissible under Rev. St. § 4915, without accounting for the witness in the usual way).
So, too, in equity, under Equity Rules 46-48 of 1912 ; here "good and exceptional cause
for departing from the general rule" is to be shown.
[Text, par. (2) ; at the end, add a new note 7a;]
'" It seems to be, however, in Colorado : 1906, Stone v. Victor E. Co., 36 Colo. 370, 85
Pac. 327 (for a deposition taken out of the State).
[Note 11;. add:]
1903, Arrowsmith's Estate, 206 111. 352, 69 N. E. 77.
1907, McConnell v. Keir, 76 Kan. 527, 92 Pac. 540.
1905, Beggans' Will, 68 N. J. Eq. 572, 59 Atl. 874.
Compare post, § 1658, par. 5, and n. 4.
[Note 12; add:]
1905, McLaughlin v. Joy, 100 Me. 517, 62 Atl. 348 (here merely to show compliance with
the statute as to complaints).
§ 1418. Anomalous Jurisdictions, etc.
[Note 1; add:]
1906, R. V. Snelgrove, 39 N. Sc. 400 (prosecutrix, examination before the magistrate; the
prosecutrix being now deceased, her examination was held inadmissible under Cr. Code
1892, § 687, the case of death being not therein provided for, and the Code provision being
meant as exhaustive; unsound).
Compare here also some of the varying local rules as to proving testimony by a stenographic
report {post, § 1669).
318
EXCEPTIONS : DYING DECLARATIONS § 1434
§ 1430. Dyins Declarations ; History. ,
[Note 1,1. 1; add:]
The custom of using dying declaxations probably comes down as a tradition long before the
evidence-system arises in the 1500 s; 12th Cent., London Custumal: "[When the sheriff
holds inquest over a man killed], if the neighborhood names any one or suspectS any one,
or if the dead man himself has accused any one before he died, the sheriff ought to attach
him who is accused, if he can find him" (Bateson's Borough Customs, I, 13; Selden Soc.
vol. XVIII, 1904).
§ 1432. Rule applicable in Certain Criminal Cases only.
[Note 1, par. 1, add:]
Contra : 1914, Thurston v. Fritz, 91 Kan. 468, 138 Pac. 625 (cited post, % 1436).
[NoU2; add:]
1905, People v. Stison, 140 Mich. 216, 103 N. W. 542 (incest, followed by death at child-
birth; deceased's declarations excluded).
1911, Haley v. State, — Tex. Cr. — , 138 S. W. 631 (rape).
[Note 3, par. 1 ; add, under Accord :]
1908, State v. Fuller, 52 Or. 42, 96 Pac. 456.
[Note 3, par. 1 ; add, under Contra :]
1906, State v. Fleetwood, 6 Penna. Del. 153, 65 Atl. 772.
In 1. 6 from the end, for "id.," read "N. J. L." '
[Note 4:; add:]
Mo. St. 1907, p. 245, Mar. 6 (amending Rev. St. 1899, c. 16, Art. 7, by adding § 2635a;
in prosecutions for abortion, etc., the woman's dying declarations are admissible, provided
she was "of sound mind when such declarations were made"; but "no conviction shall be
based alone upon such declarations unless corroborated as to the fact that an abortion or
miscarriage has taken place," and the privilege for communications to the attending
physician shall not apply to his testimony).
N. Y. St. 1909, c. 66, § 1, p. 85 (re-enacting St. 1875, c. 352, § 1, as C. Cr. P., § 398a).
Oh. St. 1910, p. 210, May 13 (on a trial for violation of Gen. Code § 12412, the woman's
dying declaration " as to the cause and circumstances of such miscarriage or attempt,"
to be admissible; enacting a new § 12412-1).
§ 1433. Death in Question must be Declarant's.
[Note 1 ; add, under Excluded :]
1904, Taylor v. State, 120 Ga. 857, 48 S. E. 361 (like State v. Bohan, Kan., quoted supra).
1875, State v. Bohan, 15 Kan. 418 (quoted supra).
§ 1434. Circumstances of Death Related.
[Note 1; add:]
1913, Lucas ». Com., 153 Ky. 424, 155 S. W. 721 (declaration as to certain prior occurrences,
excluded ; the precision with which the admissible and inadmissible portions of the declara-
tion are nicely dissected in this opinion shows the utterly unreasonable nature of this limita-
tion).
1912, State v. Albanes, 109 Me. 199, 83 Atl. 548 (declarations as to threats of defendant
reported to deceased on the day of the killing, admitted).
319
§ 1434 HEAESAY EULE
[Note 1 — continued]
1910, People v. Alexander, 161 Mich. 645, 126 N. W. 837 (statement as to prior trouble
between the parties, excluded).
1909, State v. Kelleher, 224 Mo. 145, 123 S. W. 551 (declarations as to prior occurrences,
excluded ; unsound on the facts).
1911, State V. Crean, 43 Mont. 47, 114 Pac. 603.
1908, State v. Doris, 51 Or. 136, 94 Pac. 44 ("I never had any trouble with him before,"
excluded). 1908, State v. Fuller, 52 Or. 42, 96 Pac. 456 (abortion; admissible for facts
" tending to establish every essential element of the crime " ; here, for declarant's condi-
tion of health on the day when defendant operated).
1905, Com. V. Spohr, 211 Pa. 542, 60 Atl. 1084 (declarations stating the defendant's con-
versation just before shooting, in which he referred to his prior threats and arrest, admitted).
1911, Still V. State, 125 Tenn. 80, 140 S. W. 298 (threat relating to a past occurrence, ex-
cluded). 1912, Patterson v. Com., 114 Va. 807, 75 S. E. 737 (declarations as to prior conduct,
excluded).
§ 1435. Further Limitations rejected.
[Note 1; add:]
1905, Lyles v. State, 48 Tex. Cr. 119, 86 S. W. 763.
§ 1436. Foregoing Limitations Improper.
[Note 1; add:]
In one jurisdiction the irrationality of these limitations has now been frankly recognized :
1914, Thurston v. IVitz, 91 Kan. 468, 138 Pac. 625 (action by an executor to recover the
residue of a purchase price due to his testator ; the sum paid was in dispute ; the deceased
had made a statement, when on the point of death, purporting to give "the truth about
the sale of my farm to Mr. Fritz and Mr. Beal" ; held admissible, Benson, J., diss. ; liberal
and rational opinion by West, J.; "we are confronted with. a restrictive rule of evidence
commendable only for its age" ; the restrictions positively repudiated seem to be the re-
striction (1) to criminal cases, (2) to homicide issues, (3) to the details of a specific trans-
action).
Upon the policy of enlarging or retaining the present arbitrary limitations of the Ex-
ception, see the following interesting discussion :
Mr. Wilbur Larremore, in American Law Review, XLI, 660 (Sept.-Oct., 1907) ; Mr. Wm.
A. Purrington, in Bench and Bar, XI, 91 (Dec, 1907) ; Mr. Larremore again, in Bench and
Bar, XII, 39 (Jan., 1908).
§ 1438. Solemnity of the Situation.
[Note 2; add:]
1905, People v. Thomson, 145 Cal. 717, 79 Pac. 435.
1905, Zipperian v. People, 33 Colo. 134, 79 Pac. 1018.
1904, Nordgren v. People, 211 111. 425, 71 N. E. 1042.
1911, People V. Falletto, 202 N. Y. 494, 96 N. E. 355..
§ 1439. Consciousness of the Approach of Death.
[Note 4 ; add, under Accord :]
1904, Sims v. State, 139 Ala. 74, 36 So. 138.
1910, State v. Peacock, 58 Wash. 41, 107 Pac. 1022 (but requiring great certainty in the
declarant's reference to the prior statement).
320
EXCEPTIONS : DYING DECLARATIONS § 1442
§ 1440. Certainty of Death.
[Note 1; add:]
1909, Perry's Case, 2 Cr. App. 267, 2 K. B. 697 ("a settled, hopeless expectation of death").
[Note 2, col. 1; ckW.-]
1904, Gregory v. State, 140 Ala. 16, 37 So. 259.
1904, Brown v. Com., — Ky. — , 83 S. W. 645.
1912, Biggs V. Com., 150 Ky. 675, 150 S. W. 803 ("he had a little hope" ; excluded).
1904, State v. Harris, 112 La. 937, 36 So. 810 ("Bill Harris is my friend, and I don't want
nothing done to him " ; excluded). 1904, State v. Gianfala, 113 La. 463, 37 So. 30.
1912, Fannie v. State, 101 Miss. 378, 58 So. 2 ("make haste and get the doctor, I am going
to die"; excluded).
1905, Craven v. State, 49 Tex. Cr. 78, 90 S. W. 31 1.
[Note 2, col. 2, 1. 6 from the end; omit the word "no," and add:]
1904, Pitts V. State, 140 Ala. 70, 37 So. 101.
1904, State v. Bordelon, 113 La. 690, 37 So. 603.
1904, Hawkins v. State, 98 Md. 355, 57 Atl. 27.
§ 1441. Speediness of Death.
[Note 1; add:]
1905, Brom ». People, 216 111. 418, 74 N. E. 790 (statement excluded on the facts).
1911, People J). Cassesse, 251 111. 422, 96 N. E. 274 (excluded on the facts).
§ 1442. Consciousness of Approaching Death, how Determined.
[Note 1, par. 1 ; add, under Accord:]
1913, State v. Van Winkle, — Del. — , 86 Atl. 310.
1905, Gipe v. State, 165 Ind. 433, 75 N. E. 881.
1907, Williams v. State, 168 Ind. 87, 79 N. E. 1079.
1907, Kennedy ». Com., 30 Ky. L. 1063, 100 S. W. 242.
1911, State V. Crean, 43 Mont. 47, 114 Pac. 603.
1905, State v. Roberts, 28 Nev. 350, 82 Pac. 100.
1910, Terr. v. Eagle, 15 N. M. 609, 110 Pac. 862.
1903, State v. Gray, 43 Or. 446, 74 Pac. 927.
[Note 2; add:]
1904, State v. Knoll, 69 Kan. 767, 77 Pac. 580 (the deceased was assaulted on Feb. 19, died
on Mar. 23, and declared on Mar. 7 "any hour, any day, he might die, and he had to die
of the whipping of John K." ; a priest administered the last rites ; his declaration was ex-
cluded; "there is nothing indicating that he considered death imminent"; a brilliant
tour deforce in judicial reasoning).
[NoteZ; add:]
1910, R. V. Walker, 15 Br. C. 100.
1907, R. V. Sunfield, 15 Ont. L. R. 252.
1907, McEwen v. State, 152 Ala. 38, 44 So. 619. 1909, Parker®. State, 165 Ala. 1, 51 So. 260.
1907, Fogg V. State, 81 Ark. 417, 99 S. W. 537.
1905, Zipperian v. People, 33 Colo. 134, 79 Pac. 1018. 1909, Copeland v. State, 58 Fla.
26, 50 So. 621. 1913, Bennett v. State, 66 Fla. 369, 63 So. 842.
1905, Anderson v. State, 122 Ga. 161, 50 S. E. 46. 1911, Glover v. State, 137 Ga. 82, 72
S. E. 926.
321
§1442 HEARSAY RULE
[Note 3 — coniinued]
1908, Board v. Provident H. & T. S. Ass'n, 233 111. 216, 84 N. E. 218.
1905, State v. Bonar, 71 Kan. 800, 81 Pac. 450, 484.
1904, Martin v. Com., — Ky. — , 78 S. W. 1104. 1907, Com. v. Hargis, 124 Ky. 356, 99
S. W. 348. 1910, Tibbs v. Com., 138 Ky. 558, 128 S. W. 871. 1913, Daniel v. Com., 154
Ky. 601, 157 S. W. 1127.
1904, State v. Bordelon, 113 La. 690, 37 So. 603. 1905, State v. Daniels, 115 La. 69, 38 So.
895.
1904, Hawkins v. State, 98 Md. 355, 57 Atl. 27.
1905, Ashley v. State, — Miss. — , 37 So. 960. 1905, Pryor v. State, — Miss. — , 39 So. 1012.
1905, State v. Brown, 188 Mo. 451, 87 S. W. 519. 1905, State v. Craig, 190 id. 332, 88 S. W.
641. 1907, State v. Kelleher, 201 Mo. 614, 100 S. W. 470. 1910, State v. Colvin, 226 Mo.
446, 126 S. W. 448.
1910, State v. Byrd, 41 Mont. 585, 1 1 1 Pac. 407.
1908, People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690.
1905, State v. Teadiey, 138 N. C. 587, 50 S. E. 232. 1912, State v. Watkins, 159 N. C. 480,
75 S. E. 22.
1909, Bilton v. Terr., 1 Okl. Cr. 566, 99 Pac. 163. 1910, Hawkins v. U. S., 3 Okl. Cr. 651,
108 Pac. 561.
1904, State v. Gray, 43 Or. 446, 74 Pac. 927.
1908, State v. McCoomer, 79 S. C. 63, 60 S. D. 237. 1908, State v. Gallman, 79 S. C. 229,
60 S. E. 682. 1908, State v. Franklin, 80 S. C. 332, 60 S. E. 953.
1910, State v. Swenson, 26 S. D. 589, 129 N. W. 119.
1912, Patterson v. Com., 114 Va. 807, 75 S. E. 737.
[Note 3 ; add at the end :]
1904, Sims v. State, 139 Ala. 74, 36 So. 138.
1907, WilUams v. State, 168 Ind. 87, 79 N. E. 1079.
1906, State v. Monich, 74 N. J. L. 522, 64 Atl. 1016 (the only question on review is whether
there was any evidence to support the finding of admissibility).
§ 1443. Revengeful Feelings, etc.
[Text, after the quotation from Tracy v. People; add a new note lo :]
i« 1914, Reeves v. State, — Miss. — , 64 So. 836.
§ 1445. Testimonial Qualifications, etc.
[Note 1; add:]
Distinguish R. v. Pike, 3 C. & P. 598 (cited ante, § 1443, n. 1).
§ 1445. Testimonial Qualifications, etc.
[Note 6; add:]
Accord: 1906, Park v. State, 126 Ga. 575, 55 S. E. 489.
1908, State v. Clark, 64 W. Va, 625, 63 S. E. 402.
CorUra: 1908, Lockhart v. State, 53 Tex. Cr. 589, 111 S. W. 1024.
[Note 7; add:]
The following case belongs here :
1912, State v. Law, 150 Wis. 313, 136 N. W. 803, 137 N. W. 457 (statement made after the
physician had refused to treat the deceased until she told what had happened to her, ad-
mitted).
322
EXCEPTIONS : DYING DECLARATIONS § 1447
[Note 8, par. 1 ; add :]
1911, People V. Madas, 201 N. Y. 349, 94 N. E. 857 (deceased had a tube in his windpipe
and could not articulate ; answers by nods, admitted).
[NoteQ; add:]
1913, Updike v. State, 9 Okl. Cr. 124, 130 Pac. 1107.
[Note 11; add:]
1910, State v. Byrd, 41 Mont. 585, 111 Pac. 407 (statement taken down by a hearer, and
signed by the declarant, though not read over, admitted as the witness' report of it).
§ 1446. Testimonial Impeachment, etc.
[Note 1, par. 2 ; add :]
1904, Nordgren ji. People, 211 111. 425, 71 N. E. 1042 (declarant's character impeached by
intemperate habits).
[Note 2; add:]
1904, Nordgen v. People, 211 111. 425, 71 N. E. 1042 (wife-murder; deceased declarant's
malice and revengefulness to the accused, admitted).
1907, State v. Zorn, 202 Mo. 12, 100 S. W. 591 (whether the deceased's religious infidelity
could be shown, not decided; that he did not want a minister to pray for him, held
immaterial) .
Contra: 1910, State v. Yee Gueng, 57 Or. 509, 112 Pac. 424 (that the deceased did not be-
lieve in future rewards and punishments, excluded).
[Note 5 ; correct :]
For "N. C," inl. 3, read "Cal. " ; for "id.," in 1. 4, read "N. C."
§ 1447. Rule against Opinion Evidence.
[Note 1 ; add :] :
1908, Baker v. State, 85 Ark. 300, 107 S. W. 983. 1912, Rhea u. State, 104 Ark. 162, 147
S. W. 463 (as to who shot him ; admitted on the facts).
1908, Gardner v. State, 55 Fla. 25, 45 So. 1028 ("She shot' me a purpose," excluded).
1913, State v. Klute, — la. — , 140 N. W. 864 ("He just deliberately shot me," etc., ad-
mitted).
1905, Walton v. State, 87 Miss. 296, 39 So. 689 (why the defendant shot the deceased;
excluded).
1911, State V. Crean, 43 Mont. 57, 114 Pac. 603 (that the defendant shot without provocation,
etc., allowed).
1912, State v. Watkins, 159 N. C. 480, 75 S. E. 22 ("I have d&ne nothing to be shot for,"
admitted).
1910, Blair v. State, 4 Okl. Cr. 359, 111 Pac. 1003 (not decided).
1905, Wilson v. State, 49 Tex. Cr. 50, 90 S. W. 312 ("They killed me for nothing," admitted ;
prior rulings cited). , . „ ,
1908, Lockhart v. State, 53 Tex. Cr. 589, 111 S. W. 1024 ("He killed me for nothmg, ad-
mitted, by a majority ; Davidson, P. J., diss.).
1912, Hollywood v. State, 19 Wyo. 493, 120 Pac. 471 ("Jack was not to blame; it was all
my fault," excluded). ,. , • . . , j
Are not these exclusion-rulings equal to any of the medieval witch-formulas and con-
jurers' spells, as a means of getting at the truth ?
323
§ 1448 HEARSAY RULE
§ 1448. Rule of Completeness.
[Note 1, par. 1 ■,add:]
1906, Park v. State, 126 Ga. 675, 55 S. E. 489.
1906, Cooper v. State, 89 Miss. 351, 42 So. 666 (declaration reported in part only, excluded).
[Note 1, par. 2; add:]
1910, Beaty v. Com., 140 Ky. 230,, 130 S. W. 1107.
{Note 1, par. 3; add:]
The following, belongs here : 1904, Boyd s. State, 84 Miss. 414, 36 So. 525 (wife-murder by
poison ; her statement to the doctor "1 have taken nothing except what you gave me,"
admitted ; but the question by the doctor "1 told her her husband was under suspicion, and
it was her duty to tell me if she had taken anything herself," excluded ; this seems unsound,
because the answer was an implied adoption of the question, and the only doubt could be
whether she was qualified to accuse the husband).
§ 1449. Rule of Producing Origmal of a Document.
[Text, p. 1816, 1. 1, at end ; add a new note la:]
'° 1908, Gardner v. State, 55 Fla. 25, 45 So. 1028 (justice of the peace's copy of his origi-
nal, held improperly used).
§ 1450. Rule of Preferring Written Testimony.
[Note 1, under Accord; add:]
1910, Mixon v. State, 7 Ga. App. 805, 68 S. E. 315 (bystander's written report, not preferred).
[Note 2; under Accord, add:]
1907, Mitchell v. State, 82 Ark. 324, 101 S. W. 763.
1906, Brennan v. People, 37 Colo. 256, 86 Pac. 79.
[Note 3; add:]
1904, Sims v. State, 139 Ala. 74, 36 So. 138 (the writing not preferred, if not signed ; repudiat-
ing the contrary intimation in Boulden v. State, infra, n. 4).
1894, State v. R«ed, 53 Kan. 767, 37 Pac. 174.
Not decided: 1906, Willoughby v. Terr., 16 Okl. 577, 86 Pac. 56.
That the writing may also be used, under the ordinary rules, to refresh the witness'
memory, see ante, §§ 759 ff.
[Note 4; add:]
1906, Phillips V. State, 50 Tex. Cr. 127, 94 S. W. 1051, semhle (writing assented to ; the opinion
is faultily inconsistent).
1908, State v. Clark, 64 W. Va. 625, 63 S. E. 402.
[Note 5; add:]
1907, Cleveland v. Com., — Ky. — , 101 S. W. 93 (like Hendrickson v. Com.).
1904, State v. Gianfala, 113 La. 463, 37 So. 30.
1911, Morris v. State, 6 Okl. Cr. 29, 115 Pac. 1030.
1913, Addington v. State, 8 Okl. Cr. 703, 130 Pac. 311 (both are admissible).
1910, Hunter v. State, 59 Tex. Cr. App. 439, 129 S. W. 125 (cases reviewed).
1910, State v. Vance, 38 Utah 1, 110 Pac. 434 (an oral statement, made after the written
one, also received).
324
EXCEPTIONS : DYING DECLARATIONS § 1456
§ 1451. Judge and Jury.
[Note 1, par. 1 ; add:]
1904, R. V. Aho, 11 Br. C. 114 (but it is not incumbent on the judge to exclude the jury
"during the inquiry as to admissibility ")•
1914, People v. Hotz, 261 111. 239, 103 N. E. 1007.
1907, Williams v. State, 168 Ind. 87, 79 N. E. 1079.
1906, Coyle v. Com., 122 Ky. 781, 93 S. W. 584 (the judge alone passes on admissibility ;
good opinion, by Nunn, J.).
1907, State v. Zorn, 202 Mo. 12, 100 S. W. 591 ("the jury have absolutely nothing to do
with their admissibility"). 1908, State v. Crone, 209 Mo. 316, 108 S. W. 555 (State v.
Zorn approved).
1906, State v. Monich, 74 N. J. L. 522, 64 Atl. 1016 ("In our opinion the question admits
of but one answer ; . . . [the condition of admissibility] is not reviewable by the jury" ;
prior cases considered; lucid opinion by Pitney, J.).
[Note 1 ; add as a new paragraph :]
For the trial judge's discretion, see ante § 1442, n. 3, at the end.
The statement that the judge must be satisfied, as to admissibility, "beyond a reasonable
doubt," is sometimes made : 1911, People v. White, 251 111. 67, 95 N. E. 1036. But this
is thoroughly unsound.
[Note 2; add:]
1907, Fogg V. State, 81 Ark. 417, 99 S. W. 537.
1911, People V. White, 251 111. 67, 95 N. E. 1036.
1914, Com. V. Johnson, 158 Ky. 579, 165 S. W. 984.
1907, State v. Zorn, 202 Mo. 12, 100 S. W. 591. .
1907, State v. Bar;ies, 75 N. J. L. 426, 68 Atl. 145 (compare this with State v. Biango, infra,
n. 3, handed down a week earher ; such inconsistency points to one-man opinions in this
Court). 1910, State v. Leo, 80 N. J. L. 21, 77 Atl. 523 (judge passes upon admissi-
biUty).
[Note 3; add:]
1905, People v. Thomson, 145 Cal. 717, 79 Pac. 435.
1906, Findley v. State, 125 Ga. 579, 54 S. E. 106.
1908, Jones v. State, 130 Ga. 274, 60 S. E. 840.
1907, State v. Biango, 75 N. J. L. 284, 68 Atl. 125, aemble.
1908, State v. Doris, 51 Or. 136, 94 Pac. 44.
A careful discussion of principle and precedents will be found in Professor V. H. Lane's
article in 1 Michigan Law Review 624 (1903), "The Right of the Jury to review the Decision
of the Court upon the Admissibility of Dying Declarations."
§ 1452. Declarations usable by Either Party.
[Note 1; add, under Accord:]
1907, Green ». State, 89 Miss. 331, 42 So. 797.
1914, People v. Hotz, 261 111. 239, 103 N. E. 1007.
§ 1456. Statements against Interest ; Death, Absjsnce, etc.
[Note 4; add, under Contra:]
1910, MofSt V. Canadian Pacific R. Co., 2 Alta. 483 (letter from a mother in Ontario ac-
knowledging receipt of money, excluded ; point not raised).
325
§ 1456 HEARSAY RULE
[Note 6, par. 1 ; add, under Accord:]
1906, Matko «. Daley, 10 Ariz. 175, 85 Pac. 21.
1906, Walnut Ridge M. Co. v. Colin, 79 Ark. 338, 96 S. W. 413 (on rehearing, reversing the
original ruling, which was based on Greenleaf s statement quoted infra).
1905, British Amer. Ins. Co. v. Wilson, 77 Conl. 559, 60 Atl. 293.
1904, Beebe v. Redward, 35 Wash. 615, 77 Pac. 1052.
§ 1458. Statements predicating a Limited Interest in Property.
[Note 1; add:]
1907, Tompkins's. Fonda G. L. Co., 188 N. Y. 261, 80 N. E. 933 (declarations of a director
of a corporation, admitting knowledge of the plaintiff's title to goods bought, received).
1912, People v. Storrs, 207 N. Y. 147, 100 N. E. 730 (forgery by a wife of a marriage settle-
ment dated Aug. 21, 1909, by the husband reciting the gift to her of an automobile; the
deceased husband's declarations that he had given the automobile to her, held admissible).
1906, Smith v. Moore, 142 N. C. 277, 55 S. E. 275 (deceased life-tenant's declaration, while
in possession, that "she had made a deed to Mr. M. for the lot," admitted).
1913, In re Thompson, U. S. D. C. N. J., 205 Fed. 556 (bankrupt's statements, in possession
of a dredge, that he was not owner of it, admitted).
§ 1460. Statements predicating a Fact against Pequniary Interest.
[Note 1; add:]
1905, Massee-Felton L. Co. v. Sirmans, 122 Ga. 297, 50 S. E. 92 (sheriff's entry; cited ^ost,
§ 1464).
1909, Kaleikini «. Waterhouse, 19 Haw. 359 (entries in an account book, "memorandum of
my debts," etc., admitted).
1911, Johnson v. Schoch, 85 Kan. 837, 118 Pac. 696 (by the holder of notes, that the notes
were paid, admitted).
§ 1461. Statements of Sundry Facts against Interest.
[Note 1; add:]
1903, Rulofson v. Billings, 140 Cal. 452, 74 Pac. 35 (action on a contract by defendant's
testator to adopt and support the plaintiff as a son ; the testator's declarations that he was
the plaintiff's guardian, not admitted for the defendant ; the reason for the ruling is question-
able, because as guardian the testator was under Uability to account, but not merely as
adoptive father).
1908, Chandler v. Mutual L'. & I. Ass'n, 131 Ga. 82, 61 S. E. 1036 (statement that the de-
clarant had not made or authorized any application for insurance, held to be of a fact
against interest).
1913, Murdock v. Adamson, 12 Ga. App. 275, 77 S. E. 181 (father's action for son's death;
son's statements of his own negligence, received).
1909, Wheeler v. Oregon R. & N. Co., 16 Ida. 375, 102 Pac. 347 (child killed and grandmother
injured ; in the action for the child's death, the grandmother's statement that it was her
fault was excluded ; but here she was not deceased).
1906, Drefahl v. Security Sav. Bank, 132 la. 563, 107 N. W. 179 (contract by intestate to
transfer funds to R., the intestate's statements that "R. was after her money, and she did
not want him to have it," not admitted as statements against interest).
1904, Smith J). International & G. N. R. Co., 34 Tex. Civ. App. 209, 78 S. W. 556 (by the
deceased, injured on a railroad track, that he was asleep when struck, admitted).
1908, Smith v. Hanson, 34 Utah 171, 96 Pac. 1087 (action for attorney's services to
deceased; the latter's statement that he was "not going to sue," etc., held not to in-
volve any fact of pecuniary or proprietary interest).
326
EXCEPTIONS : FACTS AGAINST INTEREST § 1476
§ 1463. Facts may or may not be against Interest, etc.
[Note 2; add:]
1912, Cryer v. McGuire, 148 Ky. 100, 146 S. W. 402 (adverse possession of E. C; state-
ments by E. B. C. held not of facts against interest, under the circumstances).
§ 1464. No Motive to Misrepresent, etc.
[Note 2; add:]
1905, Massee-Felton L. Co. v. Sirmans, 122 Ga. 297, 50 S. E. 92 (sheriff's entry of a sale of
land under a fi. fa., admitted to prove the fact of an execution and levy, though it also
recited his discharge from liability by payment).
§ 1465. Statement admissible for All Facts Contained in it.
[Note 2; add:]
1905, Turner v. Turner, 123 Ga. 5, 50 S. E. 969 (statement admitting a debt, received also to
show the facts of a conveyance, etc., stated at the same time).
1906, Knapp v. St. Louis T. Co., 199 Mo. 640, 98 S. W. 70 (testamentary insanity; an en-
try in a deceased physician's book of accounts ''By Cash paid, $2.," held to admit the pre-
ceding entry of the disease for which the visit was made).
1906, Smith v. Moore, 142 N. C. 277, 55 S. E. 275 (obscure).
§ 1466. Against Interest at the Time of the Statement.
[Note 3, par. 1 ; add:]
1881, Bailey v. Danforth, 53 Vt. 504 (in spite of the statute, providing that an indorsement,
etc., shall not be "sufficient proof," an indorsement of payment by the payee, whether made
before or after the statute has run, is admissible ; the opinion cites no precedents, and does
not fairly consider the inadmissibility of an indorsement made after statute run).
1903, McDowell v. McDowell's Estate, 75 Vt. 401, 66 Atl. 98 (Bailey v. Danforth approved
and followed).
§ 1476. Statements of Facts against Penal Interest.
[Note 9; add:]
1914, TiUman v. State, — Ark. — , 166 S. W. 582 (murder ; rule affirmed).
1906, Perdue v. State, 126 Ga. 112, 54 S. E. 820 (here offered to impeach the witness).
1860, Reilley v. State, 14 Ind. 217 (receiving stolen goods; the thief's confession, not ad-
mitted to show the theft ; "it would seem to be the dictate of natural reason, but the authori-
ties are otherwise").
1905, Miller v. State, 165 Ind. 566, 76 N. E. 245 (Reilley v. State approved).
1911, State V. Jones, 127 La. 694, 53 So. 959 (arson ; written and oral admissions by E. W.,
that he had done the burning, excluded; E. W. was not accounted for).
1855, Com. V. Elisha, 3 Gray 460 (record of conviction of the stealer, on his plea of guilty,
not receivable against the receiver of stolen goodji, with certain limitations).
1904, People v. Hutchings, 137 Mich. 527, 100 N. W. 753 (testimony of an accomplice in the
police court, the accomplice claiming privilege on the trial, excluded).
1904, Mays s. State, 72 Nebr. 723, 101 N. W. 979 (written confession of a fugitive from jus-
tice, excluded ; no authority cited).
1913, Davis v. State, 8 Okl. Cr. 515, 128 Pac. 1097 (confession of two persons, not accounted
for, that they were the thieves, excluded : "it would be impossible to convict any thief
[if such evidence were admissible] because he could always find witnesses who would testify
that they had heard some one who was absent confess to being guilty of the crime").
, 327
U476 HEARSAY RULE
[Note 9 — continued]
1912, Fonville v. Atlanta & C. A. L. R. Co., 93 S. C. 287, 75 S. E. 172 (action for death
caused by derailment ; to disprove negligence defendant ofifered the confession of A. that
he had thrown the switch and caused the wreck ; A. had been convicted of murder on this
charge, was serving a life sentence, and was disqualified thereby to testify; excluded;
Woods, J., diss. ; the decision illustrates in an extreme way the absurdity of the exclusionary
rule ; the majority opinion unsuccessfully attempts to distinguish Coleman v. Frazier, infra,
n. 10).
1913, Donnelly v. U. S., 228 U. S. 243, 33 Sup. 449 (murder; confession by J. D., since
deceased, that he was the one who had killed the victim, excluded ; Holmes, Lurton, and
Hughes, JJ., diss. ; the dissenting opinion, by Holmes, J., concisely expresses the whole
doctrine).
§ 1481. Declarations about Family History; Death, etc., of Declarant.
[Note 2; add:]
1910, Makekau v. Kane, 20 Haw, 203 (family repute heard from a grandfather and a grand-
mother, the former being shown deceased ; admitted, without showing the latter's decease).
[Note 3; add:]
1912, Jarchow v. Grosse, 257 111. 36, 100 N. E. 290 (where the declarant is deceased, the mat-
ter need not be an ancient one, and other members of the family may still be living).
[Note 4; add:]
1904, State v. Trusty, 122 la. 82, 97 N. W. 989.
1905, State v. Miller, 71 Kan. 200, 80 Pac. 51 (age of a child ; copy of a Russian parish record,
made by the priest at the father's instance and brought over with the family, excluded, on
the ground that the father was still Uving).
1912, Bigliben v. State, — Tex. Cr. — , 151 S. W. 1044 (family-Bible entry, made by the
father, still living ; excluded).
Contra : 1914, State v. Goddard, — Or. — , 138 Pac. 243 (holding exceptionally that the
death of the entrant in a family Bible need not be proved, because L. O. L. § 727, subsect,
13, makes such entries admissible unqualifiedly).
[Note 5; add:]
1909, State v. McDonald, 55 Or. 419, 104 Pac. 967 (declarant residing without the State;
admitted).
§ 1483. Declarations, etc., before Controversy.
[Note 2; add:]
1911, Rollins V. Wicker, 154 N. C. 559, 70 S. E. 934 (deceased declarant's testimony at a
former trial of similar issue, held inadmissible as post litem motam).
1903, Davis ». Moyles, 76 Vt. 25, 56 Atl. 174 (recitals in a petition concerning confiscated
lands, excluded).
[Note 5; add:]
1906, Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S. W. 665.
§ 1486. Sufficiency of the Declarant's Means of Knowledge, etc.
[Note 1, par. 2,1. 6; add:]
1906, Scott V. Herrell, 27 D. C. App. 395, 400 (attorney's testimony excluded ; following
Blackburn v. Crawfords, U. S. post, § 1491).
328
EXCEPTIONS : FAMILY HISTORY § 1491
[Note 1 — continued]
1904, Grand Lodge s. Bartes, 69 Nebr. 631, 98 N. W. 715 (same case as in 96 N. W., supra;
the witness appearing, on the whole of the record, to have Uved 20 years with her husband,
during which period his parents lived in the family, and thus to have become "acquainted
with family history, and tradition" independently of the priest's statement, her testimony
was held admissible; "the date of a person's birth may be testified to by members of his
family, although he may know of the fact only by hearsay founded on family tradition").
§ 1487. Declarations of Non-Relatives.
[Note 1; aM:]
1909, State v. McDonald, 65 Or. 419, 104 Pac. 967 (neighbor speaking only from repute ;
excluded).
1911, Osborne ». Ramsay, C. C. A., 191 Fed. 114 (repute or statements from persons not
family members nor related; not decided).
§ 1489. Declarations of Relatives, etc.
[Note 3 ; add, under Accord ;]
1905, State v. Hazlett, 14 N. D. 490, 105 N. W. 617 (mother's father's family Bible admitted).
§ 1490. Declarant's Qualifications must be Shown.
[NoU 1, col. 1,1.9; add:]
1905, Lanier v. Hebard, 123 Ga. 626, 51 S. E. 632.
1906, Hoyt V. Lightbody, 98 Minn. 189, 108 N. W. 818, 843.
1904, Grand Lodge ». Bartes, 69 Nebr. 631, 98 N. W. 715 ; and cases cited anU, § 1486, n. 1.
1906, Bernards Tp. v. Bedminster Tp., 74 N. J. L. 92, 64 Atl. 960.
1903, Davis ». Moyles, 76 Vt. 25, 56 Atl. 174.
Nor need the witness on the stand, of course, have personal knowledge of the fact, provided
he knows the family repute : Cases cited supra, and ante, § 1486, n. 1.
[Note 1, at the end ; add:]
1909, State v. McDonald, 55 Or. 419, 104 Pac. 967.
1913, McLain v. Allen, — S. C. — , 79 S. E. 1.
§ 1491. Relationship always Mutual, etc.
[A^oie2, par. 1; add:]
1906, Scheidegger v. Terrell, 149 Ala. 338, 43 So. 26, semhle.
But of course the deceased declarant's statements about his own age, birth, etc., are
admissible under the present rule : 1905, Travelers' Ins. Co. v. Henderson C. Mills, 120 Ky.
218, 85 S. W. 1090; 1907, Taylor v. Grand Lodge, 101 Minn. 72, 111 N. W. 919; this is
assumed in the English cases settling the rule.
[NoteS; add:]
1903, Rulofson v. Billings, 140 Cal. 452, 74 Pac. 35 (action on a contract by defendant's
testator to adopt and support plaintiff ; the testator's declarations that he was only the
guardian of the plaintiff, excluded on the present principle ; of course this is erroneous ;
it is a pity that the negative form of such statements seems to puzzle and mislead the minds
of so many judges. If we have regard to the general principles of the Exception, and imag-
ine a man having a boy in his family and about to speak of his relationship with the boy,
it is obvious that his utterances will be neither more nor less credible whether on speaking he
329
§ 1491 HEARSAY ?.ULE
[Note 3 — continued]
happens to say "He is" or "He is not my son'' ; i. e., it is the subject of sonship that makes
it a pedigree utterance, not the negative or affirmative tenor of the assertion).
1912, Jarchow v. Grosse, 257 111. 36, 100 N. E. 290 ("where the claimant is seeking to reach
the estate of the declarant himself, . . . such declarations are admissible" ; thus accepting
the unsound distinction).
1912, Vantine v. Butler, 240 Mo. 521, 144 S. W. 807 (John B. arid Jane B. had three children,
and then John separated from his wife pregnant with a fourth, born thereafter ; afterwards
he married again ; the plaintiff, Lizzie V., was the adopted child of W., and married V. ; she
claimed to be the last child of John B. ; the declarations of the plaintiff's mother, calling
herself Jane Butler, and stating that John Butler was her husband, admitted ; the opinion
does not note the point, but nevertheless admits the evidence, on the ground that the rela-
tionship of Jane to John was otherwise sufficiently evidenced).
1911, Hubatka v. Maierhoffer, 81 N. J. L. 410, 79 Atl. 346 (action by a daughter to obtain
title to land of her mother; a deed conveyed to Josephine M. and the defendant M. ; the
issue was whether Josephine was the wife of M. ; Josephine's declarations that she was not
were held inadmissible ; same fallacy ; the declarations of J. ought to be interpreted as dec-
larations about her relationships as including M., hence she is qualified ; it is strange how
difficult this simple idea seems to many learned judges).
1914, Aalholm v. People, In re Kenneally, — N. Y. — , 105 N. E. 647 (rule of Blackburn v.
Crawford followed, and Monkton v. Att'y-Gen'I distinguished ; Werner, J., in a careful but
unconvincing opinion, discusses the principle).
§ 1492. Relationship of Illegitimate Child.
[NoteZ; add:]
Contra, admitting the statements : 1907, Champion v. McCarthy, 227 111. 87, 81 N. E. 808
(whether plaintiff H. was the illegitimate son of S. the mother of J., who was also an illegiti-
mate, and the intestate; S. was married to C. and had also legitimate children; declara-
tions of J., S., and deceased members of theC. family, as to H. being a relative, held ad-
missible; rule of Crispin ». Doglioni repudiated).
1909, State v. McDonald, 55 Or. 419, 104 Pac. 967 (declarations of the illegitimate child's
father's sister, in whose home the illegitimate intestate was brought up; also of a half-
brother of the illegitimate intestate by a subsequent lawful marriage).
§ 1493. Testimony to One's Own Age.
[Note 1 ; add :]
Of course, a deceased declarant's statement as to his own age is admissible ; cases cited ante,
§ 1491, n. 2 ; and doubtless in many of the earlier precedents this is assumed.
§ 1495. Form of the Assertion (Bibles, etc).
[Note 5; add:]
1913, Uuku V. Kaio, 21 Haw. 710, 719 (that the witnesses "never heard from I. and K. that
P. was I.'s half-brother," admitted).
§ 1496. Authentication ; Proving Individual Authorship.
[Note 1; add:]
Accord: 1905, State v. Hazlett, 14 N. D. 490, 105 N. W. 617 (grandfather's family Bible
admitted). 1912, Peterson's Estate, 22 N. D. 480, 134 N. W. 751 (family Bible entries,
received).
330
EXCEPTIONS : FAMILY HISTORY § 15H
[Note 1 ■ — continued]
Contra: 1906, Bryant v. McKinney, 29 Ky. L. 951, 96 S. W. 809 (entry on a fly-leaf of a
Bible, copied from another Bible, excluded ; no authority cited for this point ; the ruling
is entirely unsound).
In State v. Neasby, 188 Mo. 467, 87 S. W. 468 (1905), was admitted a paper containing
pencil entries made at the time of each child's birth by neighbors at the father's request, who
testified ; this was really on the principle of § 748, ante, though treated by the Court under
the present principle.
§ 1497. Production of Original Document.
[Note 1; add:]
1913, Ewell V. Ewell, 163 N. C. 233, 79 S. E. 509 (copy of an entry in a family Bible).
§ 1502. Sundry Kinds of Pacts.
[Note 1 ; add, under Admitted :]
1908, Cox V. Brice, 5th C. C. A., 159 Fed. 378 (that a person went to Texas, and was killed
there while with Fannin's command, allowed;, approving Byers v. Wallace, Tex., supra).
[Note 1 ; add, under Excluded:]
1905, Luttrell v. Whitehead, 121 Ga. 699, 49 S. E. 691 (family repute as to possession of
land by an ancestor).
§ 1503. Kind of Issue or Litigation involved.
[Note 3; add:]
1905, Travelers' Ins. Co. v. Henderson C. Mills, 120 Ky. 218, 85 S. W. 1090 (action to in-
demnify for a sum paid for the death of a minor).
§ 1510. Attesting Witness; Must be Competent at Time of Attestation.
[Note 4; add:]
1904, Boyd V. McConnell, 209 111. 396, 70 N. E. 649.
1904, O'Brien v. Bonfield,213 111. 428, 72 N. E. 1090 ; and compare the cases cited ante, § 582.
§ 1511. Implied Purport of Attestation; All Elements of Due Execution
implied.
[Note- 2; add:]
As to the sufficiency of the attestation, when the witness on the stand fails to remember and
merely verifies by asserting that he would not have attested without knowing the facts, see
the cases cited ante, § 1315, and also compare § 747, 98.
[Note 3; add:]
1889, Canatsey v. Canatsey, 130 111. 397 (the testimony of one of the witnesses, who identi-
fied his signature but recollected nothing of the circumstances, held sufficient; Wilkin, J.,
diss.). 1909, Elston v. Montgomery, 242 111. 348, 90 N. E. 3 (see the citation post, § 1513,
n. 3).
1913, Conrades v. Heller, 119 Md. 448, 87 Atl. 28.
1906, Robertson's Estate, — Nebr. — , 109 N. W. 506 (witnesses' failure of memory).
1905, Beggans' Will, 68 N. J. Eq. 572, 59 Atl. 874. 1906, Bogert v. Bateman, — ' N. J. Eq.
— , 65 Atl. 238. 1910, Bioren ». Nesler, 77 N. J. Eq. 560, 78 Atl. 201.
331
§ 1511 HEARSAY RULE
[Note 3 — continued]
1912, Butcher v. Butcher, — Utah — , 122 Pac. 397.
1910, Hawkinson v. Otway, 143 Wis. 136, 126 N. W. 683 (careful opinion, by Dodge, J.;
applied to a signature by mark). 1912, Grant's Will, 149 Wis. 330, 135 N. W. 833.
[Note 4 ; add, under Accord :]
1904, More v. More, 111., cited post, § 1512, n. 2.
§ 1512. Same : Lack of Attestation — Clause is Immaterial.
[Note 2; add:]
1903, Kelly v. Moore, 22 D. C. App. 9, 25 (imperfect clause).
1904, More v. More, 211 111. 268, 71 N. E. 988 ("an inference arises, from the mere fact of
attestation, that the witnesses believed that the testator possessed testamentary capacity,"
and that the execution and attestation were duly performed ; here one of the attesters was
a lawyer).
1907, Mead v. Presbyterian Church, 229 111. 526, 82 N. E. 371 (More v. More followed).
1852, Fry's Will, 2 R. I. 88 (no attestation clause ; all elements of execution implied).
1909, Newell v. White, 29 R. I. 343, 73 Atl. 798 (imperfect attestation clause; Blodgett, J.,
diss.}.
§ 1513. Must the Maker's Signature, etc., be otherwise proved ?
[Note 3; add:]
1909, Elston v. Montgomery, 242 111. 348, 90 N. E. 3 (attesting witnesses deceased, but
signatures genuine, conflicting evidence as to the testatrix' handwriting, ap attestation
clause reciting due execution ; the judge's direction of a verdict for the proponent was held
proper, on the ground that the testatrix' oral acknowledgment of a will in the witnesses'
presence is legally sufficient, that therefore proof of her signature's genuineness is not
essential, and that the absence of evidence negativing the acknowledgment required a
directed verdict ; the ruling on the last point is novel, but seems sound).
1909, Worman v. Seybert, 78 N. J. L. 176, 73 Atl. 529 (bill of sale; attesting witnesses'
signatures alone suffice; Kingwood v. Bethlehem not noticed; useful opinion).
N. D. St. 1907, c. 139, p. 198 ("nor shall it be permissible to prove such instrument or con-
tract in any case by proof of the handwriting of said subscribing witness or witnesses," but
proof must be made as if there were no subscribing witnesses ; what this legislator doubtless
meant — and, by the way, what queer whim induced him to meddle in this particular
triviality of the law of Evidence? — would be expressed by inserting "alone" at the end
of the quoted clause).
§ 1518. Regular Entries ; History.
[Note 2, par. 2, at the end ; add :]
That this statute was regarded as limiting a usage before unlimited, maybe inferred from the
following passage : Isaac DisraeU, "Curiosities of Literature," vol. Ill, p. 362, Boston ed. of
1858 (in "The Philosophy of Proverbs").
"A member of the House of Commons, in the reign of Elizabeth, made a speech entirely
composed of the most homely proverbs. The subject was a bill against double-payments of
book-debts. Knavish tradesmen were then in the habit of swelling out their book-debts
with those who took credit, particularly to their younger customers. One of the members
who began to speak 'for very fear shook,' and stood silent. The nervous orator was fol-
lowed by a blunt and true representative of the famed governor of Barataxia, delivering
himself thus — 'It is now my chance to speak something, and that without humming or
hawing. I think this law is a good law. Even reckoning makes long friends. As far goes
332
EXCEPTIONS : REGULAR ENTRIES § 1519
[Note 2 — contirvued]
the penny as the penny's master. Vigilantibus non dormientibus jura subveniunt. Pay the
reckoning over-night, and you shall not be troubled in the morning. If ready money be
mensura publica, let every one cut his coat according to his cloth. When his old suit is in
the wane, let him stay till that his money bring a new suit in the increase.' " '
' Townshend's " Historical Collections," p. 283.
§ 1519. Regular Entries ; Statutory Regulation.
[Note 1 ; add:]
Br. C. St. 1905, 5 Edw. VII, c. 14, § 89 (like St. 1902, c. 22, § 5).
N. Br. : 1906, Anderson v. Anderson, 37 N. Br. 432 (certain entries in the account-books of a
deceased grantor, admitted, under St. 1895, c. 16, now Consol. St. 1903, c. 127, § 38).
Newf. St. 1904, c. 3, Rules of Court 30, par. 3.
N. Se. : 1905, Carstens v. Muggah, 37 N. Sc. 361 (supplies of meat ; plaintiff's books of ac-
count not admitted ; no authority cited).-
Ont. St. 1910, 10 Edw. VII, c. 32, § 119 (division courts; in money actions not exceeding
$25 ; "the judge on being satisfied of their general correctness, may receive the plaintiff's,
defendant's, or garnishee's books as evidence"]!.
Yukon Consol. Ord. 1902, c. 17, Ord. XXII, R. 234 (like N. Sc. Ord. 32 R. 3).
Colo. St. 1907, c. 252, p. 630, Apr. 9, amending Gen. Stats. 1883, § 3642 (inserting "asso-
ciation or company" before "may testify" ; inserting "or his employee" after "by himself" ;
inserting "employee" after "were made by such"; quwre whether this patching avails to
cure the hybrid jumble of this type of statute).
Conn. Gen. St. 1902, § 981 ("In all actions for a book debt, the entries of the parties in their
respective books shall be admissible in evidence" ; and the defendant may have an order for
oyer before pleading). 1904, Handy v. Smith, 77 Conn. 165, 58 Atl. 694 (statute applied,
without noting the specific point involved). St. 1911, c. 175, p. 1438, Aug. 9, § l(in civil
cases where a party has become unable to testify because of "incurable sickness, failing
mind, old age, infirmity, or seniUty," or insanity, "the entries and memoranda of such party,
made while sane, relevant to the matter in issue, may be received as evidence") ; § 2 (re-
ceivable also in favor of one claiming under such person insane, etc.) ; § 3 (the trial Court
to determine the appUcability of this rule).
Ga. St. 1910, No. 309, p. 57, July 28 (amending Code 1895, § 5182, by inserting, after
"blacksmith " the words "farmer, dairyman, planter").
Mass. St. 1913, c. 288 ("An entry in an account kept in a book or by a card system or by any
other system of keeping accounts shall not be inadmissible in a civil proceeding as evidence
of the facts stated because it is transcribed or because it is hearssay or self-serving, if the
Court finds that the entry was made in good faith in the regular course of business and before
the beginning of the civil proceeding aforesaid. The Court in its discretion before admit-
ting such entry in evidence may, to such extent as it deems practicable or just but^ to no
greater extent than the law has heretofore required, require" the offering party to produce
the original or to call the person making the entry or had personal knowledge of the facts
entered).
Minn. St. 1909, c. 251, p. 297, Apr. 19 (amending Rev. L. 1905, § 4719; adding a proviso
that "the entry of charges or credits " etc., when they are "a part of the usual course of busi-
ness of the person on whose behalf such entry is made," are admissible, by whatever book-
keeping system accounts are kept, if the entry "was made by a duly authorized person con-
temporaneously with the transaction therein referred to, as a part of the general system of
accounts," and "made in the usual and ordinary course of said business").
JV. Y. St. 1909, c. 517, p. 1309 (water-supply department of first-class cities ; records of obser-
vations of water-supply, its effects, etc., to be admissible when verified by officer's affidavit,
if he "cannot be found or is absent, incapacitated, or dead"; this statute is one of the
strangest mongrels ever bred in the legislative kennels).
333
§ 1519 HEARSAY RULE
[Note 1 — continued]
N. C. Rev. 1905, §§ 1622-1624 (like Code 1883, §§ 591-593); Rev. 1905, § 1625, St. 1897,
c. 480 (in actions on an account for goods sold and delivered, "a verified itemized statement
of such account" shall be prima facie evidence).
§ 1521. Death, Absence, etc., of the Entrant.
[Note 2; add:]
In re Fountaine, In re Dowler, [1909] 2 Ch. 382, 390 (death of one member of a firm does not
admit the books of the firm).
[Note 4:; add:]
In Griffin v. Boston & M. R. Co. (1913), — Vt. — , 89 Atl. 220 (cited more fuUy post, § 1530,
n. 3), the view in the text above is approved.
[Note 5 ; add, under Accord :]
1906, Godfrey v. Rowland, 17 Haw. 677, 581 (baptismal record by a clergyman in Australia,
admitted).
1903, Haas v. Chubb, 67 Kan. 787, 74 Pac. 230, semble (railroad-agent's entries, excluded, the
entrant being out of the county but in the Sj;ate).
1908, Consolidated K. C. S. & R. Co. v. Gonzales, 50 Tex. Civ. App. 79, 109 S. W. 946
(entrant absconded and his whereabouts unknown).
§ 1523. Regular Course of Business, etc.
[Note 2; add:]
The following ruling belongs here :
1904, Elliott V. Sheppard, 179 Mo. 382, 78 S. W. 627 (forgery of an acknowledged deed ; to
overthrow the certificate of acknowledgment, the deceased grantor's diary, with entries
showing him to have been in Kentucky on the day in question, was offered ; excluded, be-
cause "not in the nature of a book account" ; no authority cited ; the ruling is of no value,
because the present point is not considered, and on the facts the ruling is thoroughly un-
sound).
[NoU3; add:]
1905, Hagarty v. Webber, 100 Me. 305, 61 Atl. 685 (scale-books of a timber-surveyor).
Excluded: 1913, Arnold v. Hussey, — Me. — , 88 Atl. 724 (a diary of weather conditions,
regularly entered twice daily, by a deceased person, but not in pursuance of any business
or duty, excluded). I
§ 1524. Same: English Rule; Duty to a Third Person.
[Note 1; add:]
1904, Mellor v. Walmesley, 2 Ch. 525 (to identify a boundary, a field-book of a deceased
surveyor, employed by the Local Board to survey, was excluded).
1904, Mercer v. Denne, 2 Ch. 534, 541 (reports of a surveyor in 1610-1625, excluded).
1905, Mellor v. Walmesley, 2 Ch. 164, 166 (Mellor «. Walmesley, supra, reversed on appeal;
Vaughan Williams, L. J. : "Here the duty of the surveyor was ... to record everything
without which he coulci not arrive at that ultimate conclusion. If it was his duty to record
those matters at the time, and he in fact did so contemporaneously, I think the rule as to
admissibility applies").
1905, Mercer v. Denne, 2 Ch. 538, 554 (Mercer v. Denne, supra, affirmed on appeal).
334
EXCEPTIONS : REGULAR ENTRIES § 1530
§ 1530. Personal Knowledge of Entrant, etc.
[Note 2; add:]
1908, Cummings v Gourlay, 1 Alta. 86 (timber scale-books, admitted).
1910, St. Louis & S. F. R. Co. v. Sutton, 169 Ala. 389, 55 So. 989 (defendant's trainsheet
kept by operators at stations, recording times of arrival and departure of trains, admitted
for the plaintiff without calling the operators, on the testimony of the engineer ; the opinion
confuses the present principle and those of res gestce and parties' admissions).
1911, People V. Walker, 15 Cal. App. 400, 114 Pac. 1009 (bank-books admitted to show that
M. was not a depositor).
1907, Cooke v. People, 231 111. 9, 82 N. E. 863 (to show deposits to the defendant's account,
the books of a bank were admitted, verified by the cashier, who had not personally made
them ; here the bank had ceased doing business, and the different clerks and bookkeepers
"were not at the time of the trial in the employ of the bank, but were living in different
places, many of them being in foreign States" ; following Chisholm v. Machine Co., supra).
1908, Richardson Fueling Co. v. Seymour, 235 111. 319, 85 N. E. 496 (delivery-book of a
tugboat captain, verified by him, admitted ; the wheelbarrow-loads were checked off by
him, or by "some one else" in which case he "got a ticket signed by some one on the boat" ;
the delivery tickets had been lost). 1909, Pittsburg C. C. & St. L. R. Co. v. Chicago, 242
111. 178, 89 N. E. 1022 (destruction of numerous freight-cars by a mob ; issue as to their
loads and contents ; reports of arrival etc. of cars, made up in parts from various employees'
reports, verified by the clerk who transcribed them and the conductors who handed in the
originals, the originals being destroyed in course of business, admitted under the circum-
stances).
1904, State v. Stephenson, 69 Kan. 405, 76 Pac. 905 (ledger verified by the bookkeeper,
admitted, without calling salesmen, shipping clerks, etc.).
1906, Louisville & N. R. Co. v. Daniel, 122 Ky. 256, 91 S. W. 691 (train-movements at M.,
allowed to be evidenced by the train-sheet record of the train-dispatcher at E., based chiefly
on telegraphic reports from others, but verified on the stand by the train-dispatcher as a
correct record, without calling the various employees making the reports ; lucid and force-
ful opinion by O'Rear, J., one of the best on the subject).
1907, Madunkeunk D. & I. Co. v. Allen C. Co., 102 Me. 257, 66 Atl. 537 flogging scale-book,
made up by an assistant, used by the surveyor, without calling the assistant).
Mass. : (The bizarre piece of patchwork legislation in 1913, quoted ariie, § 1519, was
probably meant to affect this topic).
1905, Firemen's Ins. Co. v. Seaboard A. L. Co., 138 N. C. 42, 50 S. E. 452 (time of arrival of
a train at H. ; the train-sheet, verified by the train-dispatcher at R., admitted, without
calling the operator at H. who reported the arrival; one of the best modern opinions, by
Connor, J.).
1908, Jones v. Atlantic C. L. R. Co., 148 N. C. 449, 62 S. E. 521 (conductor's train record,
not admitted to show condition of stock, solely because the conductor himself was not
offered).
1904, Wells Whip Co. v. Tanners' M. F. Ins. Co., 209 Pa. 488, 58 Atl. 894 (testimony to the
amount of a stock of goods, by the secretary of the company, based on an inventory com-
piled in part by clerks, received without calling the clerks).
1906, Pelican Lumber Co. v. Johnson, 44 Tex. Civ. App. 6, 98 S. W. 207 (a secretary-manager
allowed to testify that the books were to his own knowledge correct, though he was not the
bookkeeper making the entries and the bookkeeper was not called).
1906, Grundberg v. U. S., 145 Fed. 81, 97 flnvoices, ledgers, etc. ; principle apparently
recognized). 1895, Mississippi River L. Co., v. Robson, 69 Fed. 773 (substitute this cita-
tion for Nelson v. Bank, supra, which is misnamed ; the point is so decided in M. R.
L. Co. V. Robson). 1907, Greene v. U. S., 5th C. C. A., 154 Fed. 401, 415 (bank-books show-
ing the accounts of the defendants with--the bank, proved by the chief bookkeeper who had
no personal knowledge, without calling or accounting for the 13 under-bookkeepers, ad-
335
§ 1530 HEARSAY RULE
[Note 2 — continued]
raitted; Pardee, J., diss.; the majority opinion does not discuss the point). 1909, Rey-
burn V. Queen City S. B. & T. Co., 3d C. C. A., 171 Fed. 609, 616 (bank entries in the dis-
count register, the discount ledger, and the individual ledger, verified by the clerks in
charge, admitted, without calling all persons concerned in the matters recorded; the
above principle approved). 1911, Heike v. U. S., C. C. A., 192 Fed. 83 (weighers' records,
and "pink books," admitted, affirming 175 Fed. 852).
1913, Wisconsin Steel Co. v. Maryland Steel Co., 7th C. C. A., 203 Fed. 403 (cost of manu-
f actiu-e ; workmen marked their job-time on cards ; from these the bookkeepers made up
the payroll, and sheets distributing the wages-amount paid for each job ; from these sheets
the account-books were made up ; the books, with time-cards, etc., were held admissible,
both by Federal common law and under Wis. Stats. §§ 4186-9).
[Note 3; add:]
1899, R. V. Dexter, 19 Cox Cr. 360 (a witness, who was a solicitor, had had interviews with
the accused, and had after each interview dictated to his stenographer an account of what
was said, and the stenographer had written out the notes in longhand ; the solicitor had
within three weeks after such interview gone over the notes and could say that he believed
them correct; the stenographer was now in New Zealand; Grantham, J., allowed the so-
licitor to use the notes, saying that "the shorthand clerk is his alter ego" ; but the opinion
pays no attention to the distinction between the two kinds of recollection, and rests in part
on the circumstance that the solicitor had himself verified the notes within a short time after
taking, thus invoking the principle of § 748, ante).
1913, Griffin v. Boston & Maine R. Co., — Vt. — , 89 Atl. 220 (train registers kept at sta-
tions, the entries made by the conductor of each train as it passed were offered to who was
the engineer on a certain train on certain days ; the conductors were called, except one,
and he was proved to be unable by illness to attend ; held admissible not only as "confirm-
atory" evidence for the witnesses who testified, but as "independent" evidence).
1911, West Virginia Architects & Builders v. Stewart, 68 W. Va. 506, 70 S. E. 113 (book-
keeper's entries of labor in performance of a contract, based on reports from M., the cor-
poration president, and W. the foreman ; M. the bookkeeper testified ; M. was offered as
a witness but was disqualified as an interested survivor ; W. was not called ; held, that the
entries were admissible; quoting the principle of the text above).
[Note 4; add:]
1913, Canadian Pacific R. Co. v. Quinn, Que. K. B., 11 D. L. R. 600 (hospital chart of the
plaintiff's case, verified by the nurse-superintendent and one other nurse, but containing
entries by a nurse not called and not available, held not admissible on the facts ; the opinion
shows no familiarity with the subject).
1906, Matko v. Daley, 10 Ariz. 175, 85 Pac. 721 (certain pay-rolls, in part kept by a former
paymaster not accounted for, excluded).
1905, Monarch Mfg. Co. v. Omaha, C. B. & S. R. Co., 127 la. 511, 103 N. W. 493 (weather-
records, kept by a raiboad, but not verified by the agent in charge at the time in issue, ex-
cluded; opinion obscure, and erroneous on principle, though correct on the facts).
1909, Fidelity & D. Co. v. Champion I. M. & C. S. Co., 133 Ky. 74, 117 S. W. 393 (a storage
company's employee entered the names of the depositors, but not the amounts received
from them ; these sums he embezzled ; to prove the amount embezzled, in an action against
the surety company, the storage company offered a witness who had taken the list of some
one hundred depositors, visited each one, heard their statements of the sum paid by each, ■
and then prepared a list of these items ; this list, as verified by that witness, held inadmis-
sible; theoretically correct, practically unsound, because the amount was virtually un-
disputed).
1905, Gould V. Hartley, 187 Mass. 561, 73 N. E. 656 (bill for cigars, liquor, etc. ; the plaintiff
offered an original book, sworn to by the clerk keeping it, and made up by him from tickets
336
EXCEPTIONS : REGULAR ENTRIES § 1538
[Note 4 — ccmtinued]
punched by a registering machine operated by the salesman, who sent the tickets to the
clerk, who made up the entries ; neither the tickets nor the salesman were produced ; ex-
cluded ; thus the Court refused a plain opportunity to make a liberal and safe application
of the principle to modern business methods). 1909, Delaney v. Framingham G. F. & P.
Co., 202 Mass. 359, 88 N. E. 773 (certain hospital records of medical cases, made by a
clerk testifying but based on slips handed to her by a specific physician who was not shown
to be unavailable, excluded ; otherwise, perhaps, where the entrant clerk receives the in-
formation "from various persons whom he cannot expect to remember and whom it will
be impracticable to call ")• 1913, Butchers' S. & M. Ass'n v. Boston, 214 Mass. 254, 101
N. E. 426 (drawtenders' ofBcial record of vessels passing, not admissible so far as founded
on reports of substitute drawtenders; see ante, § 1635).
1906, Einstein v. HoUaday K. L. & L. Co., 118 Mo. App. 184, 94 S. W. 296 (abstracts of
title, made partly by S. and partly by K., but verified by S. only, excluded).
1909, Missouri K. & T. R. Co. v. Davis, 24 Okl. 677, 104 Pac. 34 (stockyards book of
stock deliveries, kept by a clerk on reports from the foreman and other persons; the fore-
man alone was offered, and the clerk was not accounted for ; held that the present princi-
ple was not applicable, and also that under Wilson's Rev. & Ann. Stats. 1903, § 4574, the
clerk must be accounted for).
1905, Manchester Assur. Co. v. Oregon R. & N. Co., 46 Or. 162, 79 Pac. 60 (shop-book
record of 'engine inspections, by E. and W. and a clerk; semble, the testimony of all three
required; opinion confused).
1911, Southern R. Co. v. Mooresville C. Mills, C. C. A., 187 Fed. 72 (chief freight clerk's
memorandum of a weighing not personally known to him, excluded).
1911, Coolidge v. Taylor, 85 Vt. 39, 80 Atl. 1038 (to prove the delivery of milk to T., a book
of entries of such dehvery, verified on the stand by the company's secretary, who tran-
scribed them from the delivery-clerk's daily memoranda, was excluded, because the sec-
retary had no personal knowledge and the delivery-clerk was not called nor accounted
for).
1913, Osborne v. Grand Trunk R. Co., — Vt. — , 88 Atl. 512 (hospital tecord ; one of the
entrant nurses testifying, but the others being unaccounted for, it was excluded).
§ 1532. Production of Original Book.
[Note 1 ; add:]
1908, Cummings v. Gourlay, 1 Alta. 86 (ledger entries made from scale-books ; doubted).
1909, Claudet v. Golden Giant Mines, 15 Br. C. 13 (copy of minutes of directors' meeting
kept by deceased secretary, excluded on the facts).
[Note 2, par. 1; aM:]
1905, Manchester Assur. Co. v. Oregon R. & N. Co., 46 Or. 162, 79 Pac. 60.
§ 1538. Not Admissible where a Clerk was Kept.
[Note 2, par. 1 ; add, under Accord:]
1910, Radcliffe v. Chavez, 15 N. M. 258, 110 Pac. 699 (a wife held not a clerk).
[Note 2, par. 1 ; add, under Contra:]
1907, Hinkle v. Smith, 127 Ga. 437, 56 S. E. 464.
[Note 3; add:]
1910, Radcliffe v. Chavez, 15 N. M. 258, 110 Pac. 699 (not decided; noting prior inconsis-
tent rulings).
337
§ 1539 HEARSAY RULE
§ 1539. Not Admissible for Cash Payments or Loans.
[Note 1, col. 1; add:]
1904, Galbraith v. Starks, 117 Ky. 915, 79 S. W. 1191.
1904, Proctor v. Proctor's Adm'r, 118 K^. 474, 81 S. W. 272.
1906, Clark ». Clark, 122 Ky. 145, 91 S. W. 284.
1905, Lewis v. England, 14 Wyo. 128, 82 Pac. 869 Goan items, admitted).
1912, Wells V. Hays, 93 S. C. 168, 76 S. E. 195.
[Note 2; add:]
1907, Cooke v. People, 231 III. 9, 82 N. E. 863 (books, deposit-entries of a bank, verified by
the cashier, admitted).
1912, Levi v. Levi, 156 la. 297, 136 N. W. 696.
§ 1540. Not Admissible for Goods delivered to Others on the Defendant's
Credit.
[Note 1 ; add :\
Accord: 1912, Wells v. Hays, 93 S. C. 168, 76 S. E. 195.
Contra: 1910, Kamm v. Rees, 9th C. C. A., 177 Fed. 14, 22.
§ 1541. Not Admissible for Terms of a Special Contract.
[Note 1, col. 1; add:]
1907, Jacobs v. Morgenthaler, 149 Mich. 1, 112 N. W. 492 (not admitted to show the pay-
ment of money for stock upon a special contract).
§ 1542. Not Admissible in Certain Occupations.
[Note 1, 1. 4; add:]
1900, Produce Exchange T. Co. v. Bieberbach, 176 Mass. 577, 587, 58 N. E. 162 (whether
entries in bank-books fall within the rule; not decided).
§ 1544. Rules not Flexible ; Existence of Other Testimony. ;
[Note 1 :]
Omit Eastman v. Moulton, N. H.
[Note 2, par. 2, 1. 2 ; after "plaintiff," insert :]
"Or the goods delivered to a servant of the defendant."
[Note 2, 1. 3 :]
Omit "but this, etc. ;" and insert : 1825, Eastman s. Moulton, 3 N. H. 156.
§ 1548. Regularity as affecting the Kind of Book, etc.
[Nate 1 ; add :]
1904, Freehart v. Stanford, 77 Vt. 36, 58 Atl. 790 (Post v. Kennerson approved).
§ 1549. Regularity as afEecting the Kind of Item or Entry.
[Note 2; add:]
1904, McKnight v. Newell, 207 Pa. 662, 57 Atl. 39.
338
EXCEPTIONS : REGULAR ENTRIES § 1555
[Note 3; add:]
1909, Reyburn v. Queen City S. B. & T. Co., 3d C. C. A., 171 Fed. 609 (bank-books ad-
missible ; tlie limitation as to cash entries held not applicable) .
[Note 4 ; add :]
1909, Graham v. Dillon, 144 la. 82, 121 N. W. 47 (not decided).
1907, Page v. Hazelton, 74 N. H. 252, 66 Atl. 1049.
1911, West Virginia Architects & Builders v. Stewart, 68 W. Va. 506, 70 S. E. 113 (not
decided).
§ 1550. Contemporaneousness.
[Note 1; add:]
1910, Kamm v. Rees, 9th C. C. A., 177 Fed. 14, 22.
§ 1552. Reputation of Correct and Honest Bookkeeping.
[Note 1; add:]
1910, Radcliffe v. Chavez, 15 N. M. 268, 110 Pac. 699 (testimony by two customers as to
correctness, here held sufficient).
[Note 2; add:] .
1909, Bresler's Estate, 155 Mich. 567, 119 N. W. 1104 (similar to Montague v. Dougan).
§ 1554. Party's Suppletory Oath ; Cross-Examination, etc.
[Note 5; add, under Accord :]
1904, Cather v. Damerell, — Nebr. — , 99 N. W. 35.
[Note 6, par. 1 ; add :]
1910, Winslow's Will, 146 la. 67, 124 N. W. 895.
[Text, p. 1910, 1. 5, at the end ; add a new note 3a;]
^ 1913, Jackson v. Moore, 39 Okl. 234, 134 Pac. 1114 (requiring verification of the book's
correctness).
§ 1555. Personal Knowledge of Entrant, etc.
[Note 1; add:]
1905, Lewis v. England, 14 Wyo. 128, 82 Pac. 869 (entries in the business of an iUiterate
saloon-keeper, made by his wife, employees, and others, admitted).
[NoU2; add:]
1909, Mahoney v. Hartford Inv. Co., 82 Conn. 280, 73 Atl. 766 (books of a sewer-contractor,
kept by a bookkeeper on slips from a foreman, admitted).
1911, Atlas Shoe Co. v. Bloom, 209 Mass. 563, 95 N. E. 952 (goods suppUed on a guaranty
of credit; memoranda in account books, made by entry clerks, and testified to by these
clerks — apparently — and the superintendent, but without calling for^ the clerks who
actually made the sales and deliveries, excluded ; this Court hung back too long in its recog-
nition of liberal principles on this subject; the pepalty that ensued was the legislative
bungle, quoted ante, § 1519).
1912, Sullivan v. Godkin, 172 Mich. 257, 137 N. W. 521 (two men tallying lumber, one of
them entering the data in a book ; the entrant being deceased and the other on the stand,
the book was admitted).
339
§ 1555 HEARSAY RULE
[Note 2 — continued]
1906, Wright v. Chicago B. & Q. R. Co., 118 Mo. App. 392, 94 S. W. 555 (stockyards books
made up from scale-tickets, admitted to show cattle-weight; who verified them is not
stated). ^
1908, Corkran v. Rutter, 76 N. J. L. 375, 69 Atl. 954 (see the citation poH, § 1558, n. 2).
1908, Corkran v. Taylor, 77 N. J. L. 195, 71 Atl. 124 (see the citation post, § 1558, n. 2).
1908, Schlicher v. White, 74 N. J. L. 839, 71 Atl. 337 (ledger entries admitted, here on the
doctrine of § 1074, n. 5, ante).
§ 1556. Form and Language of the Entry, etc.
[Note 3; add:]
1904, Cather v. Damerell, — Nebr. — , 99 N. W. 35 (physician's book, the items noted by
dots and crosses, admitted). V
[Note 5 ; add :]
1905, Conover v. Neher-R. Co., 38 Wash. 172, 80 Pac. 281 (time-book not admitted, to show
that a witness was not employed on a certain day).
§ 1557. Impeaching the Book, etc.
[Note 2; add:]
1913, Northwestern Elev. Co. v. Great Northern R. Co., 121 Minn. 321, 141 N. W. 298
(conductor's train-books recording conditions of cars; to show the book untrustworthy,
testimony was received to defects existing in cars not marked defective in the train-
book).
[Note 3; add:]
1905, Cairns v. Murray, 37 N. Sc. 451, 469.
1910, Foster v. U. S., 6th C. C. A., 178 Fed. 165.
1911, Louisville & N. R. Co. v. U. S., C. C. A., 186 Fed. 280 (penalty for using cars lacking
a safety-appliance ; to identify the contents of a specific car, as shown by a way-bill, the
defendant having failed on notice to produce the way-bill, the prosecution offered "an
impression copy of an entry of the way-bill book," made as a part of the defendant's records
by the defendant's agent; received as "an admission of the fact by the railroad com-
pany").
So also where a duplicate original of a delivery-entry is handed to the buyer at the time of
a deUvery of goods, his retention of it makes it an admission, like an account stated, and it
is receivable on the principle of § 1073, ante.
1911, Federal U. Surety Co. v. Indiana L. & M. Co., 176 Ind. 328, 95 N. E. 1104.
§ 1558. Production of Original Book, etc.
[Text, p. 1913, at the end; add:]
Since the book is merely a statement about the transaction, and is not the
transaction itself, the Parol Evidence rule does not apply, and therefore the
transaction, as such, can be proved orally without producing or accounting
for the hook?
' 1899, Cowdery v. McChesney, 124 Cal. 363, 57 Pac. 22L
1899, Rissler v. Ins. Co., 150 Mo. 366, 51 S. W. 755 (cited ante, § 1339, n. 10).
1904, Halverson v. Seattle El. Co., 35 Wash. 600, 77 Pac. 1058 ; and cases cited ante, §§ 1245,
1339, post, § 2432; but compare the principles of §§ 1230, 1235, 1244, anU.
340
EXCEPTIONS : REGULAR ENTRIES § 1564
[Note 2 ; add, under Admitted :]
1909, Mahoney v. Hartford Inv. Co., 82 Conn. 280, 73 Atl. 766 (original slips destroyed in
the course of business).
1904, State v. Stephenson, 69 Kan. 405, 76 Pac. 905 (modern ledger made directly from order-
slips, admitted as the original; good opinion by Johnston, C. J.).
1908, Corkran v. Rutter, 76 N. J. L. 375, 69 Atl. 954 (books made by the witness from time-
sheets filled out by the workmen and handed in by the foreman; the books admitted,
without requiring the original time-sheets).
1908, Corkran v. Taylor, 77 N. J. L. 195, 71 Atl. 124 (similar).
1911, Kasenberg v. Hartshorn, 30 Okl. 417, 120 Pac. 956 (bank account; briginal books
required ; copy-list of items excluded).
1905, Lewis v. England, 14 Wyo. 128, 82 Pac. 869 (ledger entries admitted on the facts, to
explain the original slips of paper).
[Note 2 ; add, under Excluded :]
1911, Hawken v. Daley, 85 Conn. 16, 81 Atl. 1053 (single sheet copied from a page of a time-
book, not admitted).
1906, Putnam v. Grant, 101 Me. 240, 63 Atl. 816 (a journal, made up by siunmarizing from
certain prior books and bills, held not an original, on the facts).
§ 1560. Statutory Competency as abolishing the Necessity for Parties' Books.
[Note 2; add:] <
1911, Hawken v. Daley, 85 Conn. 16, 81 Atl. 1053.
1909, Graham v. Dillon, 144 la. 82, 121 N. W. 47.
1911, McCants v. Thompson, 27 Okl. 706, 115 Pac. 600.
§ 1561. Relation of this Branch to the Main Exception, etc.
[Note 2; add:]
1907, Davie v. Lloyd, 38 Colo. 250, 88 Pac. 446.
[Note 6; add:]
1911, First National Bldg. Co. v. Vandenburg, 29 Okl. 583, 119 Pac. 224 (requiring the
bookkeeper to be called, if alive and accessible).
§ 1564. Declarations about Private Boimdaries ; General Scope.
[Note 1; add:]
1909, Cadwalader v. Price, 111 Md. 310, 73 Atl. 273 (declarations of D, deceased, a landowner
familiar with the place, while on the land pointing out the boundaries, admitted).
1904, Yow V. Hamilton, 136 N. C. 357, 48 S. E. 782 (collecting the cases).
1905, Hemphill v. Hemphill, 138 id. 504, 51 S. E. 42.
1905, Hill V. Dalton, 140 id. 9, 52 S. E. 273.
1906, Broadwell v. Morgan, 142 N. C. 475, 55 S. E. 340.
1914, Sullivan v. Blount, — N. C. — , 80 S. E. 892.
This kind of evidence seems never to have obtained recognition in England or Canada :
Mellor V. Wahnesley, 1904, 2 Ch. 525, and 1905, 2 Ch. 164; Mercer v. Denne, 1904, 2 Ch.
535, 541, and 1905, 2 Ch. 538, 554 ; and cases cited post, § 1584.
1905, Bartlett v. Nova Scotia S. Co., 37 N. Sc. 259, 264.
In Boweru. Cohen, 126 Ga. 35, 54 S. E. 918 (1906), this Exception seems to have been
forgotten in excluding a surveyor's map.
Compare the cases on official surveys (post, § 1665).
341
§ 1566 HEARSAY RULE
§ 1566. Same : No Interest to Misrepresent.
\Notel; add:]
1907, Douglas L. Co. v. Thayer Co., 107 Va. 292, 58 S. E. 1101 (Harriman v. Brown fol-
lowed).
[Note 2; add:]
1910, Turgeon v. Woodward, 83 Conn. 537, 78 Atl. 577.
1909, Peters v. Tilghman, 111 Md. 227, 73 Atl. 726 (guardian of infant owners; declaration
excluded).
1905, Hemphill v. Hemphill, 138 N. C. 504, 51 S. E. 42 (deed by the owner).
[Note 3, par. 1 ; add:]
1910, Turgeon v. Woodward, 83 Conn. 537, 78 Atl. 577 (interesting and careful opinion by
Wheeler, J.).
1905, Hathaway v. Goslant, 77 Vt. 199, 59 Atl. 835 (owner's declarations as to boundary,
admitted).
And now in New Hampshire, the above limitation has been repudiated (thus overruling,
though not citing, Shepherd v. Thompson, supra) : 1908, Keefe v. Sullivan Co. R. Co.,
75 N. H. 116, 71 Atl. 379.
§ 1567. Same : Massachusetts Rule, etc.
[Noie 1,1. 8; add:]
1907, Goyette v. Keenan, 196 Mass. 416, 82 N. E. 427 (declarations not made on the land,
inadmissible).
[Note 2; add under N. Hampshire:]
1908, Keefe v. Sullivan Co. R. Co., 75 N. H. 116, 71 Atl. 379.
[Note 2 ; add, under Vermont :]
The last aberration has now been repudiated in turn, and the rule of Powers v. Silsby re-
stored, but with some obscurity of language :
1905, Hathaway v. Goslant, 77 Vt. 199, 59 Atl. 835.
[NoU3; add:]
1905, Emmet v. Perry, 100 Me. 139, 60 Atl. 872 (preceding cases said to be "settled law").
[Nate 5; add:]
1909, Collins v. Clough, 222 Pa. 472, 71 Atl. 1077 (confirming the preceding cases; the
learned judge's suggestion that the term "variant," above applied in the text to this rule,
is misapplied, seems to ignore the circumstances that the orthodox unlimited rule began in
the 1700 s and was recognized in several States, including Pennsylvania in 1813, and that
the "variant" only came in I^ennsylvania in 1856, by imitation of Daggett v. Shaw, Mass. ;
and that it is "unfortunate," as above termed, is respectfully maintained; that epithet
suits any rule which narrows a wholesome exception to the Hearsay rule).
[Note 6; add:]
Contra: N. C. : 1909, Caldwell L. & L. Co. v. Triplett, 151 N. C. 409, 66 S. E. 343.
[Note 7; add:] \
1913, Morrison v. Holder, 214 Mass. 366, 101 N. E. 1067 (deceased owner's declarations as
to use of land, tree as boundary, etc., admitted).
342
EXCEPTIONS : BOUNDARIES, ETC. § 1573
[Note 7 — continued]
Whether the declarant must be deceased is not decided :
1910, Abbott V. Walker, 204 Mass. 71, 90 N. E. 405 (here the declarations were receivable
against the declarant's successor, being admissions of a privy in title, under § 1082, ante).
§ 1568. Knowledge of Declarant.
[Note 1; add:\
1908, Keefe ». Sullivan Co. R. Co. 75 N. H. 116, 71 Atl. 379 (foreman of a raihoad section,
in charge of fences and roadbed, admitted).
1912, Smith v. Stanley, 114 Va. 117, 75 S. E. 742 (declarations excluded for lack of means
of knowledge). »
§ 1570. Form of Declaration; Maps, Surveys, etc.
[Note 1; add:]
The following statute belongs here rather than anywhere else: Kan. St. 1909, c. 114,
p. 214, Mar. 5 (where ofiBcial road records are destroyed, and thereby the proceedings
of road-establishment cannot be evidenced, "any map, plat, atlas, or* diagram showing
such road" is admissible, if made before destruction of records or if a copy of one so made;
the coimty clerk's certificate under seal to be prima /acie evidence of time of making);
St. 1911, c. 248, p. 448, Mar. 8, § 17 (re-enacting the foregoing).
§ 1573. Ancient J>eed-Recitals, etc.
[Nate 2; add:]
1890, Havens v. Sea Shore L'. Co., 47 N. J. Eq. 365, 375, 20 Atl. 497 (recital, "in an ancient
deed or will, of any antecedent deed or document," admissible).
1913, Wilson v. Snow, 228 U. S. 217, 33 Sup. 487 (deed's recital of executrix' authority under
a will ; Carver v. Jackson approved ; see post, § 2145, n. 4).
[NoU3; add:]
1912, Boehner v. Hirtle, N. Sc, S. C, 6 D. L. R. 548 (recital of an 'earlier title in a crown
^ant, held not admissible).
1906, Rollins v. Atlantic C. R. Co., 73 N. J. L. 64, 62 Atl. 929 (quoted infra, n. 7).
N. Y. St. 1909, c. 65, p. 24, Fed. 19 (re-enacting St. 1890, c. 158, § 1, as C. C. P. § 961e;
sheriff's deed; cited more fully post, § 1664', n. 6).
[Note 4, par. 1 ; add:]
1903, Davis v. Moyles, 76 Vt. 25, 56 Atl. 174 (certain recitals of confiscation in a petition
of 1795 and 1799 excluded, the theory being obscure).
[Note 7, par. 1 ; add :]
1910, Wilson V. Snow, 35 D. C. App. 562 (recitals that the grantor was executrix, in a
deed 50 years old, admitted).
1905, Lanier v. Hebard, 123 Ga. 626, 51 S. E. 632 (recital of heirship in a deed of 1871, not
admitted, at least without corroboration by possession or the like).
1913, Dyer v. Marriott, 89 Kan. 515, 131 Pac. 1185 (recital of a will, heir-at-law, etc., in a
deed of recent but unspecified date, excluded).
1906, Rollins v. Atlantic C. R. Co., 73 N. J. L. 64, 62 Atl. 929 (recital that "she being the
issue and heir at law of G. A.," admitted; "The rule I think may be regarded as settled
that a recital, whether of an ancient deed, will, lease, or pedigree, may be [admitted when]
supported by any testimony which renders credible the truth of the fact recited" ; here the
343
§ 1573 HEARSAY RULE
[Note 7 — continued]
recording of the deeds, etc., were held to suflBce ; the opinion does not properly distinguish
the present question, that of par. (1) supra, and the general pedigree rule).
N. Y. St. 1913, c. 395 (amending C. C. P. by adding a new § 8416 ; recital of heirship in a
deed, etc., more than 30 years old and duly recorded, to be evidence).
1903, Davis v. Moyles, 76 Vt. 25, 56 Atl. 174 (recitals of descent in a petition to the Legis-
lature, excluded, for lack of proof of the reciter's relationship).
1904, Wilson v. Braden, 56 W. Va. 372, 49 S. E. 409 (recitals as to widow and heir, admitted).
1906, Webb v. Ritter, 60 W. Va. 193, 54 S. E. 484 (recitals of heirship in a deed of 1843,
admitted).
[Note 7, par. 3; add:] ,
Alta. : St. 1910, 2d sess.. Evidence Act, c. 3, § 55 (like Ont. Rev. St. 1897, c. 134, § 2).
Ont. St. 1910, 10 Edw. VII, c. 58, § 2 (re-enacting R. S. 1897, c. 134, § 2).
1906, Gunn ®. Turner, 13 Ont. L. R. 158 (applying the statute to admit a recital in a deed
of 1864 that the grantor was administrator of his father's estate).
[Text, p. 1927 ; 1. 5 ; insert a new par. (4) :]
(4) A recital, in an ancient deed, of a consideration paid, is admissible ; ^ though
many of the cases of this sort do not deal with ancient deeds, and may better
be explained as merely laying down a rule of burden of proof presuming a
consideration.
8 1911, Anderson u. Cole, 234 Mo. 1, 136 S. W. 395 (recital of consideration in a deed
dated 1878, admitted).
§ 1576. Statutory Exception for all Statements of Deceased.
[Note 8; add:]
Mass. Rev. L. 1902, c. 175, § 67 (embodying St. 1896, c. 445).
1904, Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461 (action by a husband's heir against his
widow's executor on a promise to pay relating to the dower estate ; the deceased widow's
declarations and conduct, admitted in disproof of the promise).
1904, Tripp v. Maconlber, 187 Mass. 109, 72 N. E. 361 (action on a contract by the testator ;
testator's declarations admitted).
[iVofe9; add:]
1900, Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386 (deceased's declarations as to sending
money to his mother, etc., admitted under St. 1898).
1902, Stone v. Com., 181 Mass. 438, 63 N. E. 1074 (deceased third person's statement as to
tide-water height, admitted under St. 1898).
1905, Nagle v. Boston N. St. R. Co., 188 Mass. 38, 73 N. E. 1019 (declarations of a de-
ceased motorman, admitted; that they were made in answer to leading questions, held
immaterial).
1905, Dickinson v. Boston, 188 Mass. 595, 75 N. E. 68 (personal injury ; a statement made
after serving notice of the injury to the city, held admissible ; the trial Court's finding of
good faith, presumed)'.
1906, Gray v. Kelly, 190 Mass. 184, 76 N. E. 724 (declarations as to boundary, admitted).
1906, Weeks v. Boston El. R. Co., 190 Mass. 663, 77 N. E. 654 (more than one statenlent of
the deceased is admissible).
1906, Hall V. Reinherz, 192 Mass. 52, 77 N. E. 880 (statute applied to a written statement
made before the statute).
1906, Luce s. Parsons, 192 Mass. 8, 77 N. E. 1032 (statute applied to declarations about
land).
344
EXCEPTIONS: BOUNDARIES, ETC. § 1686
[Note 9 — contintLed]
1906, Putnam v. Harris, 193 Mass. 58, 78 N. E. 747 (statute applied, the question here
being as to the declarant's personal knowledge).
1907, Chaput ». Haverhill G. & D. St. R. Co., 194 Mass. 218, 80 N. E. 597 (decedent in an
action for personal injury).
1908, McGivern v. Steele, 197 Mass. 164, 83 N. E. 405 (pointing out that a deceased's testi-
mony may be admissible under the rule of § 1387, ante).
1908, Glidden v. U. S. Fidelity & G. Co., 198 Mass. 109, 84 N. E. 143 (statement not made
"in good faith," excluded).
1908, Supple i). Suffolk S. Bank, 198 Mass. 393, 84 N. E. 432 (statute applied to declara-
tions about money given).
1909, Phillips v. Chase, 201 Mass. 444, 87 N. E. 755 (revocation of a probate decree of
adoption).
1910, Giles V. Giles, 204 Mass. 383, 90 N. E. 595 (whether the statute applies to admit
testator's declarations of revocation not otherwise admissible ; not decided).
1911, Com. V. Stuart, 207 Mass. 563, 93 N. E. 825 (whether applicable in criminal cases,
not decided).
1912, Randall ». Peerless Motor Car Co., 212 Mass. 352, 99 N. E. 221 (statute admits prior
declarations of one who has testified at a former trial).
1913, Pigeon's Case, 216 Mass. 51, 102 N. E. 932 (the statutory exception held appUcable
to cases arising before the Industrial Accident Board under an industrial insurance Act).
For the doctrine as to the judge's determination of facts preliminary to admissibility of
the declaration, see post, % 1550.
§ 1582. Reputation as to Land Boundaries, etc. ; Matter must be Ancient.
[Note 2; add:]
1905, Dawson v. Orange, 78 Conn. 96, 61 Atl. 101.
1906, Bland v. Beasley, 140 N. C. 628, 53 S. E. 443 (reputation no earlier than 1884, in a
suit brought in 1901, excluded).
1914, Sullivan v. Blount, — N. C. — , 80 S. E. 892 (reputation of 40 years or more, ad-
mitted).
§ 1584. Reputation, not Individual Assertion.
[NoteZ; add:]
1904, Mercer v. Denne, 2 Ch. 534 (fishing-rights ; depositions taken in 1639, under an infor-
mation by the Attorney-General, stating the point to which the sea extended, excluded ;
Farwell, J., holding that "depositions of deceased witnesses" are admissible against stran-
gers "if they relate to a custom where reputation would be evidence ; but then those depo-
sitions must be depositions of matters of reputation, and not of matters of fact").
1905, Mercer v. Denne, 2 Ch. 538, 560 (foregoing ruling affirmed on appeal, but on the prin-
ciple of § 1591, foat, by one of the three judges).
1904, Cowles v. Lovin, 135 N. C. 488, 47 S. E. 610 ("reputation" and "hearsay" distin-
guished).
1906, Bland v. Beasley, 140 N. C. 628, 53 S. E. 443 (a reputation sifting down merely to
what J. C. said, J.,C. being alive, excluded).
§ 1586. Reputation must relate only to Matters of General Interest.
[Note 1; add:]
Admitted: 1905, Heath v. Deane, 2 Ch. 86, 91 (court rolls of a manor, admitted as to right
of common for tenants to take stone ; but not plainly on this ground).
345
§ 1586 HEAsRSAY RULE
[Note 1 — continued]
Rejected: 1904, Hartford v. Maslen, 76 Conn. 599, 57 Atl. 740 (whether land was tendered
by the city to the State in lieu of another site ; the understanding of citizens at a mass-
meeting in 1872, excluded; the precise point is obscure).
§ 1587. Same : Application of the Rule to Private Boundaries, etc.
[NoteZ; add:]
Can. : 1905, Bartlett v. Nova Scotia S. Co., 37 N. Sc. 259, 264.
[Natel; add:]
1770, Bedding's Lessee v. McCubbm, 1 Harr. &. McH. 368. 1735, Howell's Lessee v. Til-
den, ib. 84.
1909, Thurman v. Leach, — Ky. — , 116 S. W. 300.
1904, Cowles v. Lovin, 135 N. C.
1854, Tyson v. Shueey, 5 Md. 540. 1909, Peters v. Tilghman, 111 Md. 227, 73 Atl. 726.
488, 47 S. E. 610 (Shaffer v. Gaynor followed). 1905, Hemphill v. Hemphill, 138 N. C. 504,
51 S. E. 42 (the reputation must be ancient and ante litem motam, and must refer to some
monument or natural object oi- be corroborated by possession, etc.). 1906, Bland v. Beas-
ley, 140 N. C. 628, 53 S. E. 443 (approving the foregoing cases, but here rejecting reputa-
tion because "no deed covering this tract of land is introduced, no monument or natural
object is shown . . . and no occupation or possession of any such tract by H. or any of
his descendants," etc.).
[Note 8 ; add, under Accord :]
1905, Henry v. Brown, 143 Ala. 446, 39 So. 325 (land). 1906, Doe v. Edmondson, 145 Ala.
557, 40 So. 505 (land).
1911, Perkins v. Roswell, 16 N. M. 185, 113 Pac. 609 (ordinance forbidding to "keep,
-maintain, or operate" a sanatorium for certain diseases; common repute that the defend-
ant "runs" it, excluded; unsound).
1904, Crippin v. State, 46 Tex. Cr. 455, 80 S. W. 372 (permitting gambling in a house under
control ; ownership not provable by reputation ; compare the cases cited post, § 1626, n. 7).
In these days of complicated stockholdings the following departure seems sound : Repu-
tation is admissible to show ownership of railroad premises or vehicles by a specific corporation :
1904, Chicago & E. I. R. Co. v. Schmitz, 211 111. 446, 71 N. E. 1050.
Contra: 1903, Louisville & N. R. Co. v. Jacobs, 109 Tenn. 727, 72 S. W. 954 (reputation of
ownership of locomotives causing a nuisance). Compare the presumption of ownership
from possession (post, § 2515).
§ 1588. Reputation Post Litem Motam, etc.
[Note 1, par. 1, 1. 7; add:]
(but in Mercer v. Denne, 1904, 2 Ch. 534, 1905, 2 Ch. 535, 560 an ancient deposition was
said to be admissible, ignoring the present principle).
§ 1591. Reputation must come frpm a Competent Source, etc.
[Note 1; add:]
1904, Mercer v. Denne, 2 Ch. 535, 544 (a map of the sea-shore, made by an engineer, etc.,
in 1837, and found both in the British Museum and in the Admiralty, excluded, per Farwell,
J., apparently on the present ground in part; but the opinion is a strange one).
1905, Mercer v. Denne, 2 Ch. 538, 560 (foregoing ruling affirmed on appeal ; Vaughan Wil-
liams, J. : "The second question is : Were the deponents persons to whom we ought to
impute such knowledge of the subject-matter as would render their statements evidence
346
EXCEPTIONS : BOUNDARIES, ETC. § 1614
[Note 1 — continued]
of reputation?"; but this part of the opinion was applied to certain ancient depositions,
not to the map ruled upon by Farwell, J., supra).
§ 1602. Reputation of Marriage : General Principle.
[Text, p. 1950, last line of the section; after "disputed," add a new note 2 :]
2 The singular rule is laid down in Bowman v. Little, 101 Md. 273, 61 Atl. 223, 657, 1084
(1905) that where a ceremonial marriage is relied on reputation is inadmissible ; this law
would disturb thousands of lawful couples; the opinion of the majority in this case is
an extraordinary one, full of loose law.
§ 1603. What constitutes Reputation ; Divided Reputation.
[Note 2; add:]
1908, Weidenhoft v. Primm, 16 Wyo. 340, 94 Pac. 453 (Barnum v. Barnum, Md., approved).
§ 1605. Reputation of Other Facts of Family History.
[Note 3; add:]
1853, Doe v, Marr, 3 U. C. C. P. 36, 49 (inheritance and legitimacy ; repute as to the mother
having had illicit intercourse with S., excluded).
1914, Hays v. Claypool, — la. ''—, 145 N. W. 874 (inheritance by a recognized illegitimate
child).
1843, Fuller v. Sexton, SO N. J. L. 61, 66 (that G. K. was the daughter of D. C. ; reputation
admitted, though not "traced to the family"). ,
1909, State v. McDonald, 55 Or. 419, 104 Pac. 967 (excluded).
[Note 6; add:]
1907, Driggers v. U. S., 7 Ind. Terr. 752, 104 S. W. 1166 (death of a former witness; not
decided). '
1911, Wiess V. Hall, — Tex. Civ. App. — , 135 S. W. 384 (repute twenty years ago that a
married woman had had a child born dead, admitted ; sensible opinion by Reese, J.).
[Note 7; add:]
1906, Gilliland v. Board, 141 N. C. 482, 54 S. E. 413 (reputation as to the white race of an
ancestor, admitted ; here the reputation was shown by the fact that he had always been al-
lowed to vote at public elections without objection).
1912, Cole V. District Board, 32 Okl. 692, 123 Pac. 426 (reputation of negro race, admissible,
on an issue of scRool rights).
§ 1612. Reputation must be General.
[Note 1; add:]
1913, Watson v. State, — Ala. — , 61 So. 334 ("how he stood with the law-abiding people,"
excluded).
§ 1614. Reputation of Character; Never Hearing anything against the
' Person.
[Note 1 ; add, under Accord:]
1910, Hinson v. State, 59 Fla. 20, 52 So. 194.
1893, Gifford v. People, 148 111. 173, 35 N. ?. 754.
347
§ 1614 HEARSAY RULE
[Note 1 — continued]
1908, State s. McClellan, 79 Kan. 11, 98 Pac. 209.
1908, State v: Lambert, 104 Me. 394, 71 Atl. 1092.
1907, Smitley v. Pinch, 148 Mich. 670, 112 N. W. 686.
1905, Sinclair v. State, 87 Miss. 330, 39 So. 522.
1906, Johnson v. State, — Miss. — , 40 So. 324.
1907, People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718 (following R. v. Rowton, mpra).
1907, State v. Cremeans, 62 W. Va. 134, 57 S. E. 405.
1907, Spencer s. State, 132 Wis. 509, 112 N. W. 462.
[Note 1 ; add, under Contra ;]
1909, Brinsfield «. Howeth, 110 Me. 520, 73 Atl. 289 (whether the reputation was "ques-
tioned or doubted" until now, held improper, except to rebut testimony to bad reputation).
§ 1615. Reputation must be in Neighborhood of Residence.
[Note 1; add:]
1904, Alford v. State, 47 Fla. 1, 36 So. 436 (reputation in different places, admitted).
1904, Douglass v. Agne, 125 la. 67, 99 N. W. 550 (reputation in places of brief residence,
admitted on the facts).
1905, State «. Cambron, 20 S. D. 282, 105 N. W. 241 (rule applied to a house of ill-fame).
§ 1616. Same : Reputation in a Circle, not the Place of Residence.
[Note 2, par. 1 ; add ;]
1906, People v. Lamar, 148 Cal. 564, 83 Pac. 993 ("A man may possess different characters,
or different reputations, adapted to different localities" ; here, in saloons).
1908, State v. Lambert, 104 Me. 394, 71 Atl. 1092 (reputation in a town where "numerous
business dealings" had been had, admitted, approving the above text).
1904, State v. Brady, 71 N. J. L. 360, 59 Atl. 6 (rape ; the accused's repute for chastity and
morality "among his fellow-workmen," excluded).
1905, Southern Pac. Co. v. Hetzer, 135 Fed. 272, 285, 68 C. C.A. 26 (reputation of a fellow-
servant engineer, among conductors and brakemen, and not including "engineers and others
acquainted with him," excluded).
1909, Pittsburgh R. Co. v. Thomas, 3d C. C. A., 174 Fed. 591 (repute of a motorman among
fellow-employees, admitted ; "reputation in a special employment or calling is competently
proved — indeed, is best proved — as it exists among those of the same calling").
1910, Moering v. Falk Co., 141 Wis. 294, 124 N. W. 402 (reputation of a fellow-servant for
recklessness among those acquainted with his work, admitted).
§ 1618. Time of Reputation : (2). Reputation after the Time in Issue.
[Note 1, par. 1 ; add, under Accord:]
1904, Gordon v. State, 140 Ala. 29, 36 So. 1009 (reputation of the deceased after the killing,
excluded).
1910, In re Darrow, 175 Ind. 44, 92 N. E. 369 (disbarment ; offer of good character, not
limited to the time before the alleged offence, excluded).
1909, Allen v. Com., 134*Ky. 110, 119 S. W. 795 (defendant's reputation after the act
charged, excluded).
1913, People v. Huff, 173 Mich. 620, 139 N. W. 1033 (larceny ; cross-examination of a good-
character witness to matters after the date of the act charged, excluded).
1905, State v. Day, 188 Mo. 359, 87 S. W. 465 (prosecutrix in rape under age; reputation
prior to the trial but after birth of the child, excluded).
348
EXCEPTIONS : BOUNDARIES, ETC. § 1620
[N<ite 1 — continued]
1906, Powers v. State, 117 Tenn. 363, 97 S. W. 815 (defendant's repute after the homicide,
excluded ; but here the rule was erroneously applied to forbid cross-examination of a good-
character witness as to reports of violent conduct ; this was admissible on the principle of
§ 988, ante).
1906, State v. Biscome, 78 Vt. 485, 63 Atl. 877 (assault ; excluded, but no authority is cited
and the reasoning is confused).
1906, State v. Barrick, 60 W. Va. 676, 55 S. E. 652 (prosecutrix in rape ; reputation after
the alleged offence, inadmissible).
[Note 4 ; add, under Contra :]
1908, State v. Blackburn, 136 la. 743, 114 N. W. 531 (rape under age; the prosecutrix'
repute at time of trial, admitted; unsound).
§ 1620. Kind of Character : (1) Chastity ; (2) House of Ill-fame ; (3) Com-
mon Offender.
[Note 1 ; add :]
1906, Ex parte Vandiveer, 4 Cal. App. 650, 88 Pac. 993.
1906, State v. Connor, 142 N. C. 700, 55 S. E. 787 (criminal elopement with a married woman
of virtuous character; the woman's virtuous character admitted).
1910, State v. Mallonee, "154 N. C. 200, 69 S. E. 786.
[Note 2; add:]
Accord: 1904, Woodruff v. State, 72 Nebr. 815, 101 N. W. 1114.
1911, Hast V. Terr., 5 Okl. Cr. 162, 114 Pac. 261.
1911, State V. Workman, 66 Wash. 292, 119 Pac. 751 (statutory rape; but the reputation
should be confined to the purpose of discrediting the witness, Chadwick, J., diss.).
Contra : 1905, State v. Hummer, 128 la. 505, 104 N. W. 722 (reputation, admissible in
rebuttal, but only for chastity and not for general moral character).
1912, State v. Meister, 60 Or. 469, 120 Pac. 406 (reputation admissible after evidence by ^
specific unchaste acts).
[Note 7, par. 1 ; add :]
Admitted: 1904, State v. Steen, 125 la. 307, 101 N. W. 96 (statute applied). 1910, State
V. Burns, 145 la. 588, 124 N. W. 600 (living as a prostitute in a house of ill-fame; repute of
the house, admitted, on the analogy of Code § 4944).
1913, King V. Com., 154 Ky. 829, 159 S. W. 593 (maintaining a common public nuisance,
viz. a bawdy-house ; repute admitted, but not sufficient as the sole evidence ; the opinion
does not notice the statutory distinctions on which the rule depends).
N. Y. St. 1914, c. 365 (injunction to suppress house of ill-fame as a nuisance; amending
St. 1909, c. 49 ; inserting a new § 343(i; "evidence of the common fame and general repu-
tation of the place, of the inmates thereof, or of those resorting thereto, shall be competent
evidence to prove the existence of the nuisance").
N. C. St. 1907-, c. 779, p. 1115 (on trials for keeping a bawdy-house, etc., "evidence of the
general reputation or character of the house shall be admissible and competent; and
evidence of the lewd, dissolute, and boisterous conversation of the inmates and frequenters,
while in and around the house, shall be prima facie evidence of the bad character of the in-
mates and frequenters and of the disorderly character of the house ").
Oh. St. 1913, p. 189, Apr. 23 (adding § 13031-77 to the Gen. Code ; in pandering cases,
"general reputation of a house as a house of prostitution or assignation" is competent).
1913, Patterson v. State, — Okl. Cr. — , 132 Pac. 693. 1913, Putman v. State, — Okl. Cr. — ,
132 Pac. 916 (weighty opinion by Furman, J.).
^ 349
§ 1620 HEARSAY RULE
[Note 7 — continued]
S. D. St. 1903, c. 154, § 3, p. 179 (to show the character of a house of ill-fame, "evidence
of the general reputation of the house" is admissible). 1905, State v. Cambron, 20 S. D.
282, 105 N. W. 241 (the statute does not exclude other proper evidence).
1908, Joliff V. State, 53 Tex. Cr. 61, 109 S. W. 176 (disorderly house for illegal sale of liquor;
reputation admitted ; Davidson, P. 'J., diss.).
1912, State v. Stone, 66 Wash. 625, 120 Pac. 76 (placing a female in a house of prostitution).
Wash. St. 1913, c. 127, p. 391, § 3 (houses of prostitution, etc. ; "evidence of the general
reputation of the place shall be admissible for the purpose of proving the existence of said
nuisance").
Undecided: 1905, State v. Harris, 14 N. D. 501, 105 N. W. 621.
For reputation as evidence of ownership of such a house, see ante, § 1587, n. 8.
Compare the cases holding unconstitutional a statute which makes reputation con^-
elusive {ante, § 1354, n. 9).
[Note?,-; add:]
Accord: Ala. St. 1909, No. 193, Spec. Sess. p. 183, Aug. 25, § 5 ("general reputation of
being gamblers," admissible in trial for gaming offences).
Contra: 1906, State v. Brooks, 74 Kan. 175, 85 Pac. 1013 (liquor nuisance).
1913, Mitchell v. State, — Okl. Cr. — , 130 Pac. 1175 (professional gambler).
Here compare the use of reputation to show knowledge merely (ante, § 257).
§ 1621. Same : Sanity, Temperance, etc.
[Note 1 ; add, under Accord:]
1904, Parrish v. State, 139 Ala. 16, 36 So. 1012.
1906, Reed v. State, 75 Nebr. 509, 106 N. W. 649.
[Note 5, par. 1 ; add:]
1903, Fisher v. Weinholzer, 91 Minn. 22, 97 N. W. 426 (reputation of a dog, admitted; the
foundation for such a repute, discussed).
§ 1623. Reputation to prove Solvency.
[Note 2; add, undei Contra:]
1905, Allison's Ex'r v. Wood, ,104 Va. 765, 52 S. E. 559 ("particular opinions and particular
acts," inadmissible).
, § 1624. Reputation to prove Partnership.
[Note 1; add:]
1904, Marks v. Hardy's Adm'r, 117 Ky. 663, 78 S. W. 864 (excluded).
[Text, p. 1973, after the second quotation add a new note 2 :]
2 Accord: 1907, Grey v. Callan, 133 la. 500, 110 N. W. 909.
§ 1625. Reputation to prove Incorporation.
[Note 2; add:]
1904, State v. Knowles, 185 Mo. 141, 83 S. W. 1083 (statute applied).
1905, State v. Wise, 186 Mo. 42, 84 S. W. 954 (statute applied).
For reputation to show a corporation's ownership of realty of personalty, see ante, § 1587.
350
EXCEPTIONS : REPUTATION § 1633
§ 1626. Reputation to prove Sundry Facts.
[Note 1; add:]
1904, Chicago City R. Co. v. Uhter, 212 111. 174, 72 N. E. 195 (repute as to prior injuries
sustained by plaintiff, excluded).
1908, Knickerbocker Ice Co. v. Gray, 171 Ind. 395, 84 N. E. 341 (general repute, not ad-
mitted to show who were superintendent and engineer).
For reputation as evidence of title or possession of realty or personalty, see ante, § 1587.
§ 1633. Official Statements ; Nature of the Duty, etc.
[Note 2 ; add, under Accord :]
1905, Florscheim v. Fry, 109 Mo. App. 487, 84 S. W. 1023 (but the foreign law must be
shown ; here a record of incorporation).
1908, Miller v. Northern Pacific R. Co., 18 N. D. 19, 118 N. W. 344 (Minnesota weigh-
master's record of grain weights, made under Minn. Gen. St. 1894, § 7705, admitted ; ap.^
proving the above passage.)
1909, State v. McDonald, 55 Or. 419, 104 Pac. 967 ("It is the intent of the statute that the
ofiicer having the legal custody should make his certificate according to the law of the place
of record").
[Note 7, at the end ; add :]
Another limitation, viz. that the. entry must have been made contemporaneofudy, has once
been laid down.
1913, Butcher's S. & M., Ass'n v. Boston, 214 Mass. 254, 101 N. E. 426 (drawtender's books).
[Text, p. 1985, 1. 19 from below; insert:] '
1824, Richardson v. Mellish, 2 Bing. 229, 240; the plaintiff ship-captain brought an
action against the defendant ship-owner, in which a part of the issue of fact was the value or
profit of a voyage to the East Indies by one of the East India Company's ships ; a^ evidence
of the value of such a voyage, a book was offered, "containing a Hst of passengers, made by
the captain, and deposited in the India House, pursuant to the Act of 53 Geo. Ill," which
provided that every ship in that trade should before clearing-exhibit to the customs-officer
upon oath, "a true and perfect list . . . setting forth the names, capacities, and descrip-
tions of all persons embarked," etc., etc., and that the officer receiving such list should
upon receiving it "transmit a copy of such Ust to the secretary of the coiu't of directors of
the said United Company." It was objected that "the captain's book is not such a public
docimient as to entitle the plaintiff to give it in evidence." Best, C. J. (overrufing the
objection) : "I come now to the next question, that is, as to the admissibility of evidence.
For the purpose of proving the damage, the plaintiff put in a list returned by a captain
under the authority of the St. 53 Geo. Ill, c. 155, §§ 15, 16. It is contended that that paper
was not evidence against third parties. I am decidedly of opinion that there is no foun-
dation for that objection. This is a public paper made out by a public officer,'" under a
sanction and responsibility which impel him to make that paper out accurately ; and that
being the case, it is admissible in evidence, on the principle on which sailing instructions,
the list of convoy, and the list of the crew of a ship are admissible. But, it may be said,
'Ay, but those are papers which come from Government officers.' I go on : But the books
of the Bank of England have been made evidence, — all those are evidence that are con-
sidered as public papers, made out by persons who have a duty to the public to perform,
and whose duty it is to make them out accurately. On account of that duty and respon-
sibility, credit is given to them. . . . These are papers which the captain is ordered, by
the 15th section of the statute to which we have been referred, to make out upon oath,
which oath an officer of the customs is authorized to administer ; for what purpose ? for
the purpose of informing the East India Company (who, though subjects in England, are
351
§ 1633 HEARSAY RULE
[Text, p. 1985 — contirmed]
great sovereigns in India) what kind of persons, and with what sort of arms, these persons
are going to settlements the administration of the affairs of which are committed to them.
If these are not public papers, made with a view to great principles of public policy, I am
at a loss to know what are public papers." *
'" This phrase of the learned judge was here applied liberally ; for the ship was a private
ship, owned by Messrs. S. T. & S., and chartered by the East India Company for six voyages.
* The above principle is exemplified in the following case : 1906, Mclnerney v. U. S., 143
Fed. 729, 736, C. C. A. (ship's manifest; cited more fully post, § 1672, n. 1).
§ 1634. Publicity of the Document as Essential.
[Note 1; add:]
1904, Mercer v. Denne, 2 Ch. 534, 541, 544 (fishing-rights ; a report of a surveyor, in 1610,
made by order of the Warden of the Cinque Ports, and maps prepared in 1641-47 by the War
Office, not admitted as public documents, following Sturla y. Freccia ; Farwell, J. : "The test
of publicity as put by Lord Blackburn is that the public are interested in it, and entitled
to go and see it, so that if there is anything wrong in it, they would be entitled to protest" ;
but two charts prepared by order of the Admiralty were admitted).
1905, Merceri). Denne, 2 Ch. 538, 554 (Mercer v. Denne, swpW, affirmed on appeal ; Vaughan
WilUams, L. J., referring to Sturla ». Freccia, thought that "Farwell, J., in his judgment
carried the ruling of Lord Blackburn rather further than Lord Blackburn himself intended,"
and believed that under that principle "records in the Exchequer of acts done by officers
of the Crown in assertion or derogation of the King's title are admissible against all the
world" in a proper case; though the documents here offered did not satisfy that rule).
§ 1635. Personal Knowledge of the Official, etc.
[iVofe4; add:]
1905, Ohio Nat'l Bank v. Berlin, 26 D. C. App. 218, 225.
1904, Lalakea v. Hilo Sugar Co., 15 Haw. 570.
1906, Com. V. Johnson, 123 Ky. 437, 96 S. W. 801 -(whether a county clerk is liable for takmg
an acknowledgment of an impostor).
1907, Barnard v. Schuler, 100 Minn. 289, 110 N. W. 966 (good opinion by Start, C. J.).
[NoteQ; add:]
1904, People v. Buckley, 143 Cal. 375, 77 Pac. 169 (rule stated for an official stenographer's
transcript of testimony) ; People v. DonnoUy, ib. 394, 77 Pac. 177 (similar).
Mass. St. 1912, c. 64 (register of deeds for Worcester Co. may authorize in a specified manner
an employee "to certify or attest as chief clerk records or copies of records," and such cer-
tified or attested documents shall be equally admissible as those done by "the register in
person").
Contra: 1913, Butchers' S. & M. Ass'n v. Boston, 214 Mass. 254, 101 N. E. 426 (draw-
tenders' official record of vessels passing, not admissible so far as made on reports by sub-
stitute drawtenders ; unsound ; decided on the principle of § 1530, ante, but that principle
does not apply here, because the substitute is equally an official, hence need not be called ;
Worcester ». Northborough, not noticed).
§ 1639. Official Registers ; General Principle, etc.
[Note 1, par. 1 ; add:]
1905, Monarch Mfg. Co. v. Omaha, C. B. 85. S. R. Co., 127 la. 511, 103 N. W. 493 (Huston «.
Council Bluffs approved).
352
EXCEPTIONS: OFFICIAL STATEMENTS §1639
[Note 1 — continued]
1906, Jones' Estate, 130 la. 177, 106 N. W. 610 (record of supervisors of a county as to a
pauper, held not authorized).
1904, Jordan _D. Carberry, 185 Mass. 181, 69 N. E. 1062 (town clerk's issuance of dog-license
to C. is no evidence of C.'s ownership or keeping, unless brought to C.'s knowledge). 1904,
Cashin v. N. Y. N. H. & H. R. Co., 185 Mass. 543, 70 N. E. 930 (certain hospital records,
excluded). 1908, Allen v. Kidd, 197 Mass. 256, 84 N. E. 122 (assistant city engineer's note-
book, kept with the public records, not admitted to show the side lines of any and all streets,
his duty not having that scope ; this is a narrow decision). 1909, Delaney v. Framingham
G. F. & P. Co., 202 Mass. 359, 88 N. E. 773 (records of the Massachusetts General Hospital
and the Carney Hospital, made before the duty imposed by St. 1905, infra, n. 2, requiring
the keeping of records of "cases under their care," not admitted).
1911, Worden L. & S. Co. v. Minneapolis St. P. & S. S. M. R. Co., 168 Mich. 74, 133 N. W.
949 (Federal weather records, here excluded because relating to the wind at another
point).
1906, Levels v. St. Louis & H. R. Co., 196 Mo. 606, 94 S. W. 275 (public school teacher's
register of pupils' ages, kept by requirement of law, admitted).
1910, Hufnagle v. Delaware & H. Co., 227 Pa. 476, 76 Atl. 205 (a diary kept by law in a
U. S. Weather Bureau station, held not improperly excluded ; here the Supreme Court gives
the law of evidence a needless rebuff in order to save reversing the case ; why not better have
held that the ruling was erroneous but harmless?).
1905, Anderson v. Hilker, 38 Wash. 632, 80 Pac. 848 (records of the U. S. Weather Bureau,
read by the oflBcer in charge, admitted).
[Note 2; add:]
Alta. St. 1910, 2d sess.. Evidence Act, c. 3, § 31 (like Ont. Rev. St. 1897, c. 73, § 28).
Br. C. St. 1903^, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, § 2 (repeals § 20
of Rev. St. 1897, c. 71, and substitutes a requirement of "reasonable notice," the judge to
determine reasonableness, but the time "shall not in any case be less than ten days").
Ont. St. 1906, 6 Edw. VII, c. 11, § 55 (books and files of the mining recorder's oflSce, to be
evidence). St. 1909, c. 43, § 28 (like R. S. 1897, c. 73, § 28).
Sask. St. 1907, c. 12, Evidence Act, § 11 (like Can. St. 1893, c. 31, § 17).
Yukon St. 1904, c. 5, § 13 (like Dom. St. 1893, c. 31, § 17, adding "or of this Territory").
Haw. St. 1905, No. 67, p. 132, Apr. 26 (record of payment of U. S. liquor tax, admissible to
show that the person named keeps liquor for sale). St. 1907, No. 119, p. 243 Apr. 30,
§ 68 (foregoing statute repealed). St. 1913, No. 157, p. 283, Apr. 30 (amending St. 1907;
possession of such receipt on premises is evidence of keeping for sale, etc.).
Ky. Gen. St. 1899,' c. 81, § 17, Stats. 1903, § 3760 (official records in general; quoted ante,
§ 1352, n. 11). St. 1904, c. 127 (livery keeper's register of hirings, required to be kept, and
made admissible in evidence for offences under this act "if the livery keeper at the time issue
a duplicate memorandum to the person hiring," etc.).
Mass. St. 1905, c. 330 (certain hospitals given a duty " to keep records of the cases under
their care, and the history of the same, in books kept for the purpose," and these books to
be admissible "as to all matters therein contained"). St. 1908, c. 269 (amending St. 1905,
c. 330, by extending it to "similar records kept prior to Apr. 25, 1905"). 1909, Delaney v.
Framingham G. F. & P. Co., 202 Mass. 358, 88 N. E. 776 (certain hospital records, of the
kind described in St. 1905, held properly excluded, because St. 1905 was passed only after
the records were made and St. 1908 was passed only after the trial took place). St. 1912,
c. 442 (amends foregoing statutes to read "records of the treatment of the cases under their
care and the medical history of the same," and to substitute for "all matters therein con-
tained" the terms "so far as such records relate to the treatment and medical history of
such cases, but nothing herein contained shall be admissible as evidence which has reference
to the question of Uability" ; this childish way of trying to keep out things that do not suit
the interest of one party — like leaving out or putting in the joker in a pack of cards, or
353
§ 1639 HEARSAY RULE
[Note 2 — continued]
abolishing foul balls because the pitcher's skill needs a counterpoise — is unworthy of our
profession in this age),
N. Y. St. 1909, c. 65, p. 24, Feb. 19 (re-enactmg St. 1897, c. 622, § 1, as C. C. P. § 961f.)
U. S. St. 1909, Mar. 4, c. 321, No. 350 (Crim. Co^de; 35 Stat. L. p. 1088), § 93 (embezzle-
ment of pubUc money ; transcript of Treasury books to be evidence of balance).
Utah St. 1905, c. 108, Mar. 9, § 17 (State engineer's maps and records to be "prima fade
evidence of the facts stated or delineated therein").
Vt. St. 1910, No. 86, p. 93 (amending Pub. St. § 1600, to admit U. S. weather records
"taken under direction of any department of the U. S. government," in civil cases, by certi-
fied copy under oath by the officer at the place of taking and keeping).
§ 1640. Assessor's Books ; Electoral Register.
[Note 1 ; add, under Admitted:]
1907, Central Pacific R. Co. v. Feldman, 152 Cal. 303, 92 Pac. 849 (allowable on cross-
examination, to test an expert).
1905, Gossage v. Phila. B. &. W. R. Co., 101 Md. 698, 61 Atl. 692 (county commissioners'
books, based upon the plaintiff's admissions, received against him to show the value of a ship) .
1907, Ripton v. Brandon, 80 Vt. 234, 67 Atl. 541 (quadrennial appraisal, admitted to show
value of realty).
1910, McHenry v. Parkersburg, 66 W. Va. 533, 66 S. E. 750 (assessment admitted under Code
1899, c. 29, § 115, Code 1906, § 801).
[Note 1 ; add, under Excluded :]
1909, St. Louis I. M. & S. R. Co. v. Magness,93 Ark. 46, 123 S. W. 786 (assessor's valuation,
excluded).
1905, Sanitary District v. P. P. W. & C. R. Co., 216 111. 575, 75 N. E. 248 (question reserved).
1906, Lewis v. Englewood Elev. R. Co., 223 111. 223, 79 N. E. 44 (eminent domain; the
assessed valuation of the land, not allowed to be asked 6i the owner producing his tax
receipts ; on the ground that, for real property, the owner is not required to list its value for
taxation and therefore the assessed valuation does not involve any admission on his part ;
as to the theory of official statements by the assessor, the Court merely adds that "the
assessor himself might have been a competent witness"). 1914, Kelley ». People's Nat'l
F. Ins. Co., 262 111. 158, 104 N. E. 188 (assessor's schedule of value of household goods, not
admissible against the owner ; whether admissible as a return made by the owner or agent,
not decided).
1908, Atherton v. Emerson, 199 Mass. 199, 85 N. E'. 530 (official appraisal by appraisers in
bankruptcy, excluded).
1904, Suffolk & C. R. Co. v. West End L. & I. Co., 137 N. C. 330, 49 S. E. 350 (assessor's
list, not admitted to show value; collecting prior cases).
1904, Spink v. N. Y. N. H. & H. R. Co., 26 R. 1. 115, 58 Atl. 499 (damage by a raiboad fiire ;
the assessor's valuation not admitted).
[Note 3 ; add, under Accord:]
1905, Ivey v. Cowart, 124 Ga. 159, 52 S. E. 436 (tax-return, receivable as an admission, to
show the contents of lots of land).
1904, Fudge v. Marquell, 164 Ind. 447, 72 N. E. 565 (action on a note ; plaintiff's tax
schedules received as an admission of non-ownership by omission of the note).
[Note 9; add:]
Ont. St. 1904, 4 Edw. VII, c. 23, § 67 (certified copy of an assessment roll "shall be received
as prima facie evidence").
354
EXCEPTIONS : OFFICIAL STATEMENTS § 1644
[Note 9 — continued]
Colo. St. 1905, c. 100, § 14 (electoral registration books, admissible to prove the taking of
oath, etc.).
Mass. St. 1913, c. 401 (valuation by assessors for three preceding years, Eidmissible in con-
demnation proceedings). '
Mo. St. 1913, p. 290, Apr. 7, § 24 (drains and levees ; the levee tax-book of the district, to be
evidence of "all matters therein contained"). , '
N. C. Rev. 1905, § 4331 (electoral register, and a certified copy thereof, shall be prima /acie:
evidence of a voter's right to vote) ; ib. § 4338 (poll-books shall be evidence in a trial for-
illegal or fraudulent voting).
Or. St. 1913, c. 184, p. 325, § 47 (amending Lord's Or. Laws, § 3733). I
§ 1641. Military and Naval Registers; Ship's Log-Book. '
[Note 5 ; add, at the end :]
The following cases, though not involving log-books, should serve to indicate a common-law
basis for any such books required by law to be kept :
1824, Richardson ». Mellish, 2 Bing. 229 (list of passengers, kept under statute, admitted ;
quoted ante, § 1633).
1846, Buckley v. U. S., 4 How. U. S. 251, 258 (Richardson v. Mellish, Eng., supra, cited with
approval).
1906, Mclnerney v. U. S., 143 Fed.. 729, 736, C. C. A. (manifest of a shipmaster, required
to be made by St. 1891, Mar. 3, c. 551, § 8, 26 Stat. 1085, reporting the name, etc., of im-
migrants, admitted to show the time of arrival of the defendant in the U. S.).
[Note 6; add:]
1907, The Kentucky ,Jl 48 Fed. 500, D. C. (log-books admitted, after being used by the other
party for cross-examination, though "ordinarily the entries in such books are not receivable
in support of the party who makes them").
§ 1642. Registers of Marriage, Birth, and Death; History, etc.
[Note 3; add:]
The laws of the Northwest Territory, in 1791 (c. VII) provided for the recording of certifi-
cates of marriage in the county register, "an exemplification of which shall be evidence of
such marriage. "
§ 1644. Registers of Marriage, Birth, and Death; Law in the Various
Jurisdictions.
[Note 1 ; under Statutes, add :]
Alta. St. 1907, c. 13, § 30 (registrar of vital statistics ; certified extracts shall be "evidence of
the facts therein stated").
Man. St. 1912, 2 Geo. V, c. 97, § 6 (certificate "of the details of any birth, marriage, or
death of which there is a record," given by the Minister of the Department or the inspector
of vital statistics, to be evidence of "the facts certified to be recorded").
N. Br. St. 1910, 10 Edw. VII, c. 43, § 3 (certified copy by the diocesan registrar of Frederic-
ton, admissible to prove dociunents of church history deposited with him).
N. So. St. 1908, 8/Edw. VII, c. 1, § 31 (certificate of registrar-general of births and deaths,
to be evidence "of the facts certified to be recorded").
Out. St. 1908, 8 Edw. VII, c. 28, § 7 (registrar-general of vital statistics ; certificate "of the
details of any birth, marriage, or death" recorded, to be evidence "of the facts certified to
be recorded").
355
§ 1644 HEARSAY RULE
{Note 1 — continued]
P. E. I. St. 1906, 6 Edw. VII, c. 6, § 30 (certified copies of the official records of birth, mar-
riage, and death, are evidence "of the facts therein stated").
Yukon Consol. Ord. 1902, c. 6, § 20 (certified extract of returns of births, marriages, and
deaths, by the registrar of vital statistics, "shall be evidence of the entry and prima facie
evidence of the facts therein stated").
[Note 1, under Judicial Rulings; add:]
Eng. : 1904, Goodrich's Estate, P. 138 (certified copy of an entry of "a register of births"
for 1844, admitted, as "evidence of its contents" ; here, to show the date of birth of de-
fendant). 1912, Drew «. Drew, P. 175 (divorce for desertion ; marriage proved by a regis-
trar's certified copy from the register of marriages in Edinburgh, under St. 1856, 19-20
Vict. c. 96, § 2). 1913, In re Woodward, Kenway v. Kidd, 1 Ch. 393 (registers of the
Society of Friends, prior to 1837, deposited at the General Registry office under St. 3-4 Vict.,
1840, c. 92, were offered to be proved by certified extract from the Society's unofficial digest
kept at its own office, because no index was available at the government office ; excluded ;
this is not in keeping with the liberal informality which the Judicature Act was supposed to
install).
Can. : 1912, Zdrahal v. Shatney, Man. C. A., 7 D. L. R. 554 (criminal conversation ; a pur-
porting official certificate of marriage in Hungary, with no evidence of authenticity nor of the
law of Hungary, excluded ; too strict).
1913, R. V. Hutchins, Sask. S. C, 12 D. L. R. 648 (marriage in Minneapolis, proved by certi-
fied copy of clerk's record of marriage license, etc.).
[Note 6; add:]
Cal. Pol. C. 1872, § 3083, as amended by St. 1905, c. 107 (State registrar's certified copy of
the record of "any marriage or birth registered under the provisions of this chapter shall be
prima facie evidence in all courts and places of the facts therein stated"). St. 1905, c. 498
(open adultery; a new P. C. § 2696 provides that "a recorded certificate of marriage or
a certified copy thereof, there being no decree of divorce, proves the marriage of a person
for the purposes of this section"). St. 1907, c. 236, p. 296, Mar. 15 (amending § 15 of St.
1905, c. 107, Mar. 18, by adding a similar provision for the State registrar's certified copy of
a registry of death).
€olo. St. 1907, c. 112, p. 238, Apr. 9, § 21 (State registrar's certified copy of register of birth
or death, admissible).
Del. St. 1909, c. 66, p. 121, Apr. 15, § 10 (official record of births, marriages, and deaths,
kept by county recorder, to be admissible). St. 1911, c. 244, p. 682, Apr. 10, § 6 (marriage
record book kept by county clerk of the peace, to be evidence of the facts recorded). St.
1913, c. 84, p. 206, Mar. 31, § 8 (same for marriage register of State registrar of vital sta-
tistics or of county recorder). St. 1913, c. 85, p. 219, Mar. 31, § 14 (same for birth register
of same officers).
Ga. St. 1914, No. 466, p. 157, § 20 (vital statistics ; State registrar's certified copy of record
of a birth or death, to be evidence "of facts therein stated").
Haw. : 1905, Kapiolani Estate v. Thurston, 16 Haw. 471 (a "book of marriage records,"
kept by a minister, recording marriages among his parishioners, admitted). 1906, Godfrey v.
Rowland, 17 Haw. 577, 581 (baptismal record by a clergyman in AustraUa, admitted). St.
1905, No. 64, p. 122, Apr. 26, § 3 (certificate of Hawaiian birth, by Secretary of Hawaii, to be
evidence). St. 1907, No. 79, p. 101, Apr. 19 (amending the foregoing statute). St. 1909,
No. 15, p. 14, Mar. 11 (repealing the foregoing two statutes). St. 1911, No. 96, p. 127,
Apr. 17 (provisions re-enacted in more elaborate form). St. 1911, No. 23, p. 20, Mar. 17
(amending Rev. L. 1905, § 2214; the certificate of marriage to be evidence of the fact).
St. 1913, No. 86, p. 108, Apr. 19 (amending Rev. L. 1905, § 1159; registrar-general's certi-
fied copy of record of birth, marriage, or /death, admissible).
356
EXCEPTIONS: OFFICIAL STATEMENTS §1644
[Note 6 — continued]
Ida. St. 1911, c. 191, p. 631, Mar. 9, § 21 (State registrar's record of birth or death, to be
evidence of the facts stated).
III. : 1904, Sokel x. People, 212 111. 238, 72 N. E. 382 (marriage record of N. Y. City health
department, not shown to be official, excluded ; but a marriage contract purporting to be
by the law of Moses was admitted). 1904, Murphy v. People, 213 111. 154, 72 N. E. 779
(N. Y. Catholic church register, excluded because the priest's handwriting was not proved).
Kan. : 1906, State v. Miller, 71 Kan. 200, 80 Pac. 51 (copy of a Russian parish record, ex-
cluded, because not shown to be official). St. 1911, c. 296, p. 529, Mar. 14, § 15 (registra-
tion of vital statistics; State registrar's certified copy of record of birth or death, to be
evidence of "the facts stated therein"). St. 1913, c. 224, p. 398, Mar. 10, § 6 (State regis-
trar's certified copy of marriage records, admissible).
Ky. : 1892, Faustre v. Com., 92 Ky. 34, 17 S. W. 189 (register of marriages by registrar of
an Ontario town, not admitted, for lack of evidence that the marriage "was registered in
due form according to the laws of that sovereignty" ; the certificate of the officer reciting
the Ontario law not being sufficient ; unsound). Stats. 1899, § 1638 (certified copy of "any
register of births and marriages" in any "State, nation, province, colony, city or town, out
of the United States," "if the same shall have been registered in due form according to the
laws of such sovereignty," is admissible). St. 1910, c. 37, p. 96, Mar. 21, § 21 (vital
statistics ; State registrar's certified copy of record of birth, sickness, or death, to be evidence
of "the facts therein stated"). 1912, Apkins v. Com., 148 Ky. 662, 147 S. W. 376 (bigamy ;
record of marriages in Illinois, proved by the deputy county clerk on the stand, admitted).
1912,RoyalNeighbors».Hayes, 150Ky.626, 150S.W.845 (Irish parish priest's baptismal
record, dated 1844, not admitted under Stats. § 1638 ; it is odd that it was not ruled in on
the principle of § 1523, ante).
Me.: St. 19()7,c. 99, p. 104, Mar. 21 (marriage may be evidenced by record made by regular
clergyman if his ecclesiastical authority has been vouched to Secretary of State and the latter
has issued certificate of authority). St. 1909, c. 161, p. 163, Mar. 29 (similar, with broader
phrasing; repeaUng St. 1907 and Rev. St. c. 61, §§ 11, 12).
Mich. : 1906, Krapp v. Metrop. L. Ins. Co., 143 Mich. 369, 106 N. W. 1107 (certain certifi-
cates of death and cause of death, admitted under Comp. L. § 4617, supra).
Minn. St. 1911, c. 250, p. 347, April 18 (Secretary of State's certified copy of vital statistics'
of births and deaths of each county to be evidence "of each and every fact contained
therein"). St. 1913, c. 251, p. 342, April 11 (official record of death of a joint tenant or
person on whose life any title is limited, to be evidence of "the death of such person and the
termination of such joint tenancy," or other estate, when recorded by certified copy in the
county registry of deeds). St. 1913, c. 579, p. 862, April 28, § 13 (vital statistics; State or
local registrar's certified copy of record of "any birth or death recorded under the provisions
of this Act" to be evidence of "the facts therein stated" ; repealing Rev. L. 1905, §§ 2140
2141, 2143, and St. 1911, c. 250).
Miss. St. 1912, c. 149, p. 158, Mar. 11, § 5 (vital statistics; State registrar's certified copy
of record of birth, sickness, or death, to be evidence of "the facts therein stated").
Mo. : 1905, Collins v. German-Amer. M. L. Ass'n, 112 Mo. App. 209, 86 S. W. 891 (certain
Roman Catholic registers in Ireland, deposed to be admissible by Irish law, received;
Childress v. Cutter and Morrissey v. W. F. Co. are presumably but not expressly overruled ;
the opinion makes an extraordinarily confusing mixture of the Exceptions for pedigree
statements, shop-books, and public documents, and is calculated to discourage any further
scientific study of the Hearsay rule in this State). St. 1909, p. 538, May 6, § 21 (vital sta^
tistics; State registrar's certified copy of record of "any birth or death registered under
the provisions of this Act," to be evidence of "the facts therein stated").
Nebr. St. 1913, c. 68, p. 201 (county judge's record of Indian agent's record of Indian mar-
riages, admissible).
Nev. St. 1911J c. 199, p. 392, § 20 (vital statistics; secretary of the State board of health's
certified copy of the record of birth or death, to be evidence "of the facts therein stated").
357
§ 1644 HEARSAY RULE
[Note 6 — continued]
N. J. : 1907, Sparks v. Ross, 72 N. J. Eq. 762, 65 Atl. 977 (a certain marriage record from a
county clerk's ofiBce; its standing doubted on the facts). St. 1909, c. 109, p. 168, § 10
(certified copy of certificate of birth or death, by medical superintendent of State bureau of
vital statistics, to be admissible "to prove the facts therein contained"). St. 1910, c. 274,
p. 477, § 15 (vital statistics ; certified copy by medical superintendent of State bureau of
vital statistics, of original "certificate of marriage, marriage license, and consent to the
marriage of minors," to be evidence "of the facts therein contained"). St. 1912, c. 199,
p. 306, § 15 (re-enacts the foregoing).
N. Y. St. 1911, c. 279, p. 675 (amending Consol. L. 1909, c. 45, St. 1909, c. 49, § 22, in other
respects). St. 1913, c. 619, p. 1647 (amending Consol. L. c. 45, St. 1909, c. 49, by inserting
a new § 391 ; State commissioner of health's certified copy of record of birth or death, to be
evidence "of the facts therein stated ").
N. D. St. 1907, c. 270, p. 433, § 21 (vital statistics ; State registrar's certified copy of record
of a birth or death, to be evidence "of the facts therein stated").
Pa. St. 1905, No. 221, § 21 (State registrar's certified copy "of the record of any birth or
death registered under the provisions of this act" shall be "prima fade evidence in all
courts and places of the facts therein stated").
S. C. : St. 1911, No. 70, p. 131, § 7 (marriage certificate, or a copy, signed by celebrant, and
certified by the clerk of court or judge of probate, to be evidence "of the contract of mar-
riage between the parties therein named ").
S. D. : St. 1907, c. 246, p. 485 (certified copies of "any certificate or record" in the ofiice of
the State superintendent of vital statistics, to be evidence).
Tenn. : 1904, Murray v. Supreme Hive, 112 Tenn. 664, 80 S. W. 827 (records of a board of
health, admitted to show age). St. 1913, c. 30, p. 64, § 21 (vital statistics ; States registrar's
certified copy of record of birth or death shall be evidence " of the facts therein stated ").
Tex.: 1907, Burton v. State, 51 Tex. Cr. 196, 101 S. W. 226 (bigamy; rule of § 2085, post,
applied to a recorded marriage certificate).
St. 1907, c. 62, p. 134, § 2 (family-desertion; "certificates of baptism reciting the names of
the parents " to be prima facie evidence of marriage and parentage).
Utah St. 1905, c. 120, Mar. 16, § 20 (certified copy of the State registrar's "record of a birth
or death" shall be prima fade evidence "of the facts therein stated").
1912, State v. Springer, — Utah — , 121 Pac. 976 (adultery ; certified copy of the marriage
record, admissible, without noting any of the above distinctions).
Vt. St. 1902, No. 44 (cited post, § 1646, n. 2). St. 1908, No. 80, p. 72 (amending Pub. St.
§ 3303, to admit certified copies, by the town clerk or the secretary of State if the record is ,
in his oflBce").
Va. St. 1910, c. 28, p. 36 (amending Code 1887, § 2229 ; clerk's certified copy of recorded
marriage certificate, to be evidence " of the facts stated therein").
Wash. St. 1907, c. 83, p. 145, § 20 (vital statistics ; State registrar's certified copy of record
of birth or death, to be evidence " of the facts therein certified").
§ 1645. Certificates of Marriage.
[NoteG; add:]
1911, Bellis' Case, 6 Cr. App. 283 (rape under age ; "a birth certificate" admitted).
1909, People v. Le Doux, 165 Cal. 535, 102 Pac. 517 (said obiter that on a charge of bigamy,
a duly certified copy of a county record of marriage in Arizona, together with the minister's
certificate of indorsement on the original license, would be inadmissible without other evi-
dence of the minister's authority and of his execution of the license and certificate ; unsound ;
but here the defendant's affidavit applying for the license was held enough, the bigamy
not being essential in the trial for murder).
1906, State v. Rocker, 130 la. 239, 106 N. W. 645 (murder; certificate of defendant's mar-
riage in Germany, formerly exhibited by him as genuine, admitted against him).
358
EXCEPTIONS : OFFICIAL STATEMENTS § 1651
[Note 6 — continued]
1910, State v. Walsh, 25 S. D. 30, 125 N. W. 295 (original certificate required by law, ad-
mitted, although Civ. C. § 55 mentions only the record or a copy as admissible; the opinion
does not discuss the principle).
§ 1646. Personal Knowledge required, etc.
[Note 1; add:]
1904, Goodrich's Estate, P. 138 (cited ante, § 1644, n. 1).
{Note 2; add:]
1910, Brotherhood of Painters v. Barton, 46 Ind. App. 160, 92 N. E. 64 (in an action on a
fraternal benefit policy, to show the caus? of death, the record of the board of health of a city,
based on the physician's report required by law to be filed, was held inadmissible, two judges
diss.).
1906, Krapp v. Metrop. L. Ins. Co., 143 Mich. 369, 106 N. W. 1107 (physician's official
certificates of deaith, admitted to show cause of death).
1909, State v. McDonald, 55 Or. 419, 104 Pac. 967 ("Official registers are competent
evidence of the facts properly recorded therein, although they relate to matters not within
the personal knowledge of the officer making them").
'l904, McKinstry v. CoUins, 76 Vt. 221, 56 Atl. 985 (assault; the same certificate as in
McKinstry v. Collins, 74 Vt., supra, not admitted to show the cause of death; St. 1902,
supra, having intervened between the two trials).
§ 1647. Registers of Title ; Shipping Registers, etc.
[Note 1 ; add :]
Yukon St. 1904, c. 5 (like N. Br. Consol. St. 1877, c. 46, § 15).
[Note 5, 1. 1 ; add :]
see also the statutes for certified copies, cited post, §§ 1674, 1680.
§ 1650. Registers of Conveyances; ffistory.
[Note 1, par. 1, at the end; add:]
now reprinted in Vol. I of Select Essays on Anglo-American Legal History (ed. for the
Association of American Law Schools, 1907).
§ 1651. Same : Law in the United States and Canada.
[Note 5 ; add, under Canada ;]
Dominion: 1910, Musgrave v. AngUn, 43 Can. Sup. 484 (certified copy of will by Quebec
notary ; stated more fully post, § 1681).
Alberta: St. 1906, c. 24, § 17 (land-title registry; the registrar's exemplification or certified
copy of "any instruments affecting lands which are deposited, filed, or registered in his office "
is admissible " in the same manner and with the same effect as if the original was produced").
St. 1910, 2d sess.. Evidence Act, c. 3, §§ 36, 37 (like Ont. Rev. St. 1897, c. 73, § 32, but add-
ing for the liberty of rebuttal, "proof that there is no such original, or that the copy is not
a true copy of the original in some material particular") ; ib. c. 3, §§ 48, 49 (instrument
deposited, kept, or registered with the registrar or deputy registrar of land-titles, provable
by certified copy under seal ; except that "where a public officer produces upon subpoena
an original document, it shall not be deposited in court unless otherwise ordered," but a copy
certified by the producing officer shall be filed).
359
§ 1651 HEARSAY RULE
[Note 5 — continued]
British Columbia: St. i903-4, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, § 2
(repeals § 20 of Rev. St. 1897, c. 71, and substitutes another rule, as quoted ante, § 1639,
n. 2). St. 1906, 6 Edw. VII, c. 23, § 118 (like Rev. St. 1897, c. Ill, § 48) ; ib. § 120 (quoted
ante, § 1225, n. 1). St. 1914, 4 Geo. V, c. 26, § 2 (amending Rev. St. 1911, c. 78, § 50,
by substituting "twenty-five" for "ten").
Nova Scotia : 1905, Bartlett v. Nova Scotia S. Co., 37 N. Sc. 259, 264 (certified copies of
a plan found in the Crown land-office, not admitted, under Rev. St. 1900, c. 163, § 20;
the Court's hostility to the statute, "of which I confess I knew nothing tmtil the present
argument," is so strong that its ruling is not to be wondered at). St. 1910, 10 Edw. VII,
c. 28 (amending Rev. St. 1900, c. 163, § 27, by requiring ten days' notice of the intention
to use such a document, if a will or a deed, unless the judge dispenses). 1905, McDonald
V. McDonald, 38 N. Sc. 261,278, 290 (the execution of the original deed need not otherwise
be proved when a certified copy of the registry is offered under the Evidence Act, Rev. St.
1900, c. 163, § 21).
Ontario: St. 1909, c:^3, §§ 33, 34 (like R. S. 1897, c. 73, § 32, but adding liberty of rebuttal
asinAlta.St. 1910, c.3, §§36,37); ib. §46 (like R. S. 1897, c. 73, § 46); ib. § 47 (like ib.
§ 47).
Saskatchewan: St. 1906, c. 24, § 38 (land-titles ; like Alb. St. 1906, c. 24, § 17). St. 1907,
c. 12, Evidence Act, § 16 (any instrument filed or registered in a land registration district,
provable by the registrar's certified copy).
Yukon : Consol. Ord. 1902, c. 39, § 28 (registered bills of sale and mortgages of personalty ;
the registration clerk's certified copies shall be "prima fade evidence of the execution of
the original instrument," and of the date, etc.). St. 1904, c. 5, § 11 (grants, etc. ; quoted
post, § 1680) ; ib. §§ 19, 20 (provisions for proof of copies of town-site allotments. Crown
grants, etc. ; compare N. Sc. Rev. St. 1900, c. 163, § 20) ; ib. § 21 ("A copy of any deed,
or any document on file in the land-titles' office, certified under the hand of the registrar,
or proved to be a true copy taken therefrom, shall be taken in evidence in place of the
original") ; ib. § 23 (similar to N. Sc. Rev. St. 1900, c. 163, § 23, but requiring only five days'
notice) ; ib. § 24 (similar to N. Sc. Rev. St. 1900, c. 163, § 24, for the Gold Commissioner's
ofiice) ; ib". § 25 (similar to N. Sc. Rev. St. 1900, c. 163, § 25) ; ib. § 26 (similar to N. Sc. Rev.
St. 1900, c. 163, § 25, for the Gold Commissioner's office).
[Note 5 ; add, under United States :]
Alabama: 1904, Norris v. Billingsley, — Ala. — , 37 So. 564. St. 1911, No. 52, p. 31, Feb.
20, § 2 (certified transcript of recorded corporate conveyance, admissible ; unless the cor-
poration is in possession and forgery is pleaded).
Delaware: St. 1907, c. 231, p. 635, Mar. 1 (record of deeds defectively acknowledged, dated
before Jan. 1905, to be evidence). St. 1909, c. 218, p. 502, Feb. 25, § 4 (similar for convey-
ances acknowledged before consular agent). St. 1911, c. 254, p. 700, Apr. 6 (similar, for
deeds defectively acknowledged, dated before Jan. 1, 1909).
Florida: Const. 1885, Art. 16, § 21 (certified copy of the record of a deed or mortgage is
admissible aaprima facie evidence "thereof, and of its due execution," on proof of loss, etc.).
St. 1905, No. 33 (amending Rev. St. 1892, § 1973, as to mode of acknowledgment for
record).
Georgia : 1904, Bentley v. McCall, 119 Ga. 530, 46 S. E. 645. 1905, Flint R. L. Co. v. Smith,
122 Ga. 5, 49 S. E. 745 (power of attorney). 1906, Bower v. Cohen, 126 Ga. 35, 54 S. E.
918. 1909, Leverett v. Tift, 6 Ga. App. 90, 64 S. E. 317 (ancient deed, recently recorded,
and no afiidavit of forgery filed ; admitted, and burden of proof expounded).
Hawaii: St. 1909, No. 69, p. 85, Apr. 10, §§ 3, 4 (recorded conveyances out of the Territory
but within the U. S. ; may be acknowledged before any officer there authorized to do so,
with a certificate of the Secretary of State under State seal, or of clerk of a court of record
under court seal, attesting the officer's authority, as here prescribed in detail) ; § 5 (provisions
for acknowledgment of conveyances in foreign countries).
360
EXCEPTIONS : OFFICIAL STATEMENTS § 1651
[Note 6 — coniiniied]
Illinois: St. 1907, May 28, p. 376, § 5 (recorded claim for horse-shoer, provable by recorder's
certified copy or the certified original).
Indiana: 1907, New Jersey I. & I. R. Co. v. Tutt, 168 Ind. 205, 80 N. E. 420 (whether a 24-
inch tile would suffice for a ditch, allowed).
Kansas: St. 1905, c. 323 (all papers lawfully "filed or recorded in any public office'' are
provable by the record or a certified copy of the custodian under official seal) ; c. 324
(similar, for instruments defectively recorded with the register of deeds for ten years past).
1911, Van Hall v. Rea, 85 Kan. 675, 118 Pac. 693 (a U. S. government receiver's receipt
for public land, recorded but not acknowledged, admitted under the curative act of 1905).
Minnesota : St. 1905, c. 305, §§ 35, 42 (registration of title ; similar to the Illinois act supra;
provision made for certified copies of the certificate of title, of deeds, etc., filed with the
registrar, etc.). St. 1913, c. 370, p. 520, Apr. 19 (legalizing record of certain mortgages).
Montana: St. 1913, c. 86, p. 378, Mar. 14, § 10 (chattel mortgages acknowledged and re-
corded ; county clerk's certified copy admissible, " without further proof of the execution").
New Jersey: St. 1904, c. 117 (record of deeds, etc., to be evidence of the time of recording
or fifing). St. 1906, c. 250 (mode of acknowledgment of foreign deeds, amended).
New Mexico : St. 1905, c. 38, § 3 (recorded contract of sale, etc., of animals, provable by
certified copy).
New York : For §§ 935, 936, 946, substitute the following corrected transcripts : C. C. P .1877,
§ 935 ("A conveyance, acknowledged or proved, and certified, in the manner prescribed by
law to entitle it to be recorded in the county where it is offered, is evidence without further
proof thereof. Except as otherwise specially prescribed by law, the record of a conveyance,
duly recorded within the State, or a transcript thereof, duly certified, is evidence, with like
effect as the original conveyance") ; ib. § 936 ("The certificate of the acknowledgment, or
the proof of a conveyance, or the record, or the transcript of the record, of such a conveyance,
is not conclusive ; and it may be rebutted, and the effect thereof may be contested, by a
party affected thereby. If it appears that the proof was taken upon the oath of an inter-,
ested or incompetent witness, the conveyance, or the record or transcript thereof, shall not
be received in evidence, until its execution is established by other competent proof") ; ib.
§ 946 ("A conveyance of real property, situated without the State, acknowledged or proved,
and certified, in like manner as a deed to be recorded within the county wherein it is offered
in evidence, is evidence, without further proof thereof, as if it related to real property situated
within the State. A conveyance of real property, situated within another State, or a Terri-
tory of the United States, which has been duly authenticated, according to the laws of that
State or Territory, so as to be read in evidence in the courts thereof, is evidence in like
manner").
NorthCarolina: Rev. 1905, §§ 1023, 1598, 1599 (like Code 1883, §§ 1251, 1253, 1263) ; Rev.
1905, § 1619 (like Code § 1344). 1909, Thorp's Will, 150 N. C. 487, 64 S. E. 379 (record in
Superior Court Book of Settlements of a discharge from an insane asylum, not authorized
to be recorded, excluded).
Oregon: St. 1907, c. 174, p. 330 (certified copy of deeds defectively executed and deeds of
executors' etc. irregularly authorized, admissible).
South Carolina: 1905, Uzzell v. Horn, 71 S. C. 426, 51 S. E. 253 (State v. Crocker approved).
South Dakota: 1905, Bruce v. Wanzer, 20 S. D. 277, 105 N. W. 282 (certified copy of a duly
recorded mortgage, admitted, under Rev. C. C. P. 1903, § 533).
Texas: 1907, Burton v. State, 51 Tex. Cr. 196, 101 S. W. 226 (bigamy ; rule of Civ. St. 1895,
§ 2312, applied to a recorded marriage certificate). St. 1907, c. 165, p. 308 (Rev. Civ. St.
§ 2312, amended, for defectively acknowledged deeds).
UniUd States : St. 1906, June 28, c. 3585, Stat. L. vol. 34, p. 552 (mode of certifying acknowl-
edgments in Guam, Samoa, and the Canal Zone, provided).
Virginia: St. 1903, Extra, c. 486 (Code 1887, § 2501, as to mode of taking acknowledgments
for record, amended). St. 1912, c. 152, p. 311 (validating the records of certain transcripts
lacking clerks' signatures).
361
§ 1651 HEARSAY RULE
[Note 5 — continued]
Washington: 1905, Chrast v. O'Connor, 41 Wash. 360, 83 Pac. 238 (under the statute for
deeds, the original's execution need not be otherwise evidenced than by the certified copy).
West Virginia : 1908, Cobb v. Dunlevie, 63 W. Va. 398, 60 S. E. 384 (certified copy of record
of contract not acknowledged, not admitted under Code 1899, c. 73, §§ 2, 3, Code 1906,
§§ 3075, 3076).
Wyoming: St. 1913, c. 126, p. 174 (livestock brands; amending Comp. St. 1910, § 2604;
certified copy of assignment of brand or mark recorded with the State board of livestock
commissioners, to be admissible "as is now provided for certified copies of instruments
affecting real estate").
§ 1652. Registry out of the Jurisdiction.
[Note 4, 1. 3; add:]
and cases cited ante, § 1633, n. 2 (nature of duty), and § 1644 (marriage-registers).
[Note 4:, col. 3,1 4; add:]
1906, McCraney*. Glos, 222 111. 628, 78 N. E. 921 (certified copy of a recorded deed in Iowa
admitted, the acknowledgment being defective by the law of Illinois but correct by the law
of Iowa; point not noticed).
1905, Wilcox V. Bergman, 96 Minn. 219, 104 N. W. 955 (certified copy of a deed-record in
North Dakota ; held, that the statutes of that State authorizing the record must be shown,
and also "the effect given to certified copies as evidence in the Courts of that State").
[Note 4, at the end; add:]
Arkansas: Dixon v. Thatcher, McNeill v. Arnold.
Virginia: Peterman v. Laws,
see also Garrigues v. Harris, Pa., cited post, § 2105, n. 4.
§ 1653. Modes of Proof available when Registration is Unauthorized.
[Note 7; add:]
and compare the doctrines of § 1679, par. (2), post, and § 1635, n. 4, ante.
§ 1657. Record of Assignment of Patent.
[Note 2; add:]
1905, American Graphophone Co. v. Leeds & C. Co., 140 Fed. 981, C. C. (certified copy of
the patent-office record of an assignment, excluded, in the absence of evidence of the exist-
ence and loss of the original; Mayor v. American Cable Co. and National C. R. Co. v.
Navy C. R. Co., supra, followed).
1913, Toledo Computing Scale Co. v. Computing Scale Co., 7th C. C. A., 208 Fed. 410
(certified copy of assignnient not duly acknowledged, not admissible to prove execution).
Compare the statute for patent-office records (quoted post, § 1680, n. 1).
§ 1658. Record of Wills.
[Note 2; add:]
1906, Thomas v. Williamson, 51 Fla. 332, 40 So. 831 (statutes as to the effect of probate,
construed).
Mich. St. 1913, No. 376, p. 721, May 14 (record of probate to be evidence of heirship).
1912, Riley v. Carter, 158 N. C. 484, 74 S. E. 463 (under Rev. St. 1905, § 3133, a probated
will from Maryland, by certified copy signed by the register of wills, excluded ; the clerk
of the court of probate should have signed).
362
EXCEPTIONS : OFFICIAL STATEMENTS § 1662
[Note 2 — continued]
1909, Copley v. Ball, 4th C. C. A., 176 Fed. 682, 688 (certain certified copies from W. Virginia,
passed upon).
The statutes expressly admitting the record-copy of a foreign probate of will are collected
post, § 1681, with other statutes for judicial records.
[Text, p. 2049, at the end ; add a new paragraph :]
(5) The record of preliminary probate, before a judge without a jury, has
in strictness no place as evidence on appeal at a final trial of probate before
a jury, and therefore may be forbidden to be read ; * but it seems an excess
of judicial nicety to see any harm in it.
* 1904, Weston v. Teufel, 213 111. 291, 72 N. E. 908 (citing prior cases). Compare the
cases cited ante, § 1417, n. 11.
\
§ 1660. Judicial Records, etc.
[Note 1; add:]
N. C. Rev. 1905, §§ 327-345 (like Code §§ 55-71 and later statutes).
Cal. St. 1906, Spec. Sess., c. 55, p. 73, June 16, § 2 ; id. c. 60, p. 82, June 16.
La. St. 1910, No. 234, p. 397, July 6 (detailed provisions for use of certified copies from re-
established archives, the originals being burned).
Okl. St. 1909, c. 33, p. 616, Art. I, § 5.
[Text, p. 2050, 1. 9 of the §, after "involved," inseH: ]
iThe question most frequently treated as one of evidence (as distinguished
from that of conclusiveness under § 1347), is whether a, judgment of conviction
of crime js admissible to prove the fact of guilt when relevant in another civil
or criminal case between other parties.'"
^ Some authorities have been collected ante, § 1388, n. 6, par. 3 (principal and accessory
in larceny) arid § 1347, n. (sundry cases).
§ 1662. Records of Legislature, etc.
[Note 5; add:]
Alta. St. 1910, 2d sess., Evidence Act, c. 3, § 55 (like Ont. Rev. St. 1897, c. 134, § 2) ; the
Ontario statute is cited here in Note 6, infra, but belongs in Note 5.
Br. C. St. 1909, 9 Edw. VII, c. 45, § 2 (vendors and purchasers; like Ont. Rev. St. 1897, c.
134, § 2).
Ont. St. 1910, 10 Edw. VII, c. 58, § 2 (re-enacting R. S. 1897, c. 134, § 2).
1905, Wilder v. A. D. & R. E. Traction Co., 216 111. 493, 75 N. E. 194 (recital of a petition
in a city ordinance, held prima facie evidence).
1913, Shawnee G. & E. Co. v. Motesenbocker, — Okl. — , 135 Pac. 357 (city council's
resolution reciting the negligent methods of the defendant in the use of its wires, ex-
cluded).
1893, Kinkead v. U. S., 150 U. S. 483, 498, 14 Sup. 172 (legal effect of recitals in private-
claim acts, determined ; distinguishing Branson v. Wirth, 17 Wall. 32, and U. S. v. Jordan,
113 U. S. 418).
1903, Davis v. Moyles, 76 Vt. 25, 56 Atl. 174 (legislative report and recitals in a private
act, as to the confiscation of certain land, excluded).
363
§ 1662 HEARSAY RULE
[Note 6; add:]
1904, Bosworth v. Union R. Co., 26 R. I. 309, 58 Atl. 982 (injury to a passenger during a
riot; the Governor's proclamation to disperse the riot, noticed).
Compare the citations under judicial notice (post, § 2578).
§ 1664. Returns, in General ; Sheriff's Return, etc.
[Note 2; add:]
Contra: 1908, Driggers v. U. S., 21 Okl. 60, 95 Pac. 612 (a marshal's return on a subpoena
that the witness was dead, not admissible ; but the opinion erroneously relies upon the theory
that it is "not binding" except between the parties; of course it is not binding, but that is
not the question ; the only real doubt of law here was whether a return of death, instead of
not found, was within his authority).
[Note 3; add:]
1907, Driggers v. U. S., 7 Ind. Terr. 752, 104 S. W. 1166 (return of death, for a witness whose
former testimony was offered).
[Note 6, par. 1 ; add :]
1903, Sweeney v. Sweeney, 119 Ga. 76, 46 S. E. 76 (prior cases examined).
1906, Patterson v. Drake, 126 Ga. 478, 55 S. E. 175.
N. Y. St. 1909, c. 65, p. 24, Feb. 19 (re-enacting St. 1890, c. 158, § 1, as C. C. P. § 961e;
recital in recorded sheriff's deed of a sale twenty years before, to be evidence of a lost execu-
tion or writ, on certain conditions).
Va. St. 1912, c. 235, p. 524 {quoted post, § 2143, n. 5) ; St. 1914, c. 100, p. 186 (repealing the
fortegoing).
[Note 6, par. 2; add:]
1908, Glanz v. Ziabek, 233 111. 22, 84 N. E. 36 (tax-deed alone insufficient).
1906, Husbands v. Polivick, — Ky. — -, 96 S. W. 825 (collector's return of a tax-sale is pre*
sumptive evidence, under Stats. 1899, c. 81, § 7, Stats. 1903, § 3760, quoted ante, § 1352,
n. 11).
[Note 6 ; at end, add :]
Compare the statutes for old recorded deeds {post, § 2143, n. 5).
§ 1665. Surveyor's Returns, etc.
[Note 1 ; add :]
Compare the rule for inquisitions of domain {post, § 1670), in which the application of the
principle is slightly different.
[Note 2 ; add, at the beginning :]
1838, Evans v. Taylor, 7 A. & E. 617 (a survey of a manor in the duchy of Lancaster, not
admitted to show the boundary of the manor, because the statute Extenta Manerii, 4 Edw.
I, c. 1, gave no authority to define the boundaries of a manor, and no authority for the
survey except this statute was shown).
1867, Phillips v. Hudson, L. R. 2 Ch. 243 (a grant and survey of a manor formerly belonging
to the Crown, made by the Crown under a general statute and recorded in the Augmenta-
tion Office, but relating to private property of the King, not admitted for the tenants against
the lord).
[Note 2 ; add, at the end :]
but the following more recent cases, in which none of the above rulings were cited, are more
strict :
364
EXCEPTIONS : OFFICIAL STATEMENTS § 1668
[Note 2 — continued]
1904, Mellor v. Walmesley, 2 Ch. 525 (report of a surveyor to a municipal board, excluded).
1904, Mercer v. Denne, 2 Ch. 534, 541 (report of a surveyor made to the Warden of the
Cinque Ports, excluded; quoted ante, § 1634, n. 1); in Mellor v. Walmesley, 1905, 2 Ch.
164, 166, the Court of Appeal reversed the ruling in Mellor v. Walmesley, supra, but rather
on tlie principle of § 1524, ante; in Mercer v. Denne, 1905, 2 Ch. 538, 555, the Court of
Appeal affirmed the ruling in Mercer v. Denne, supra.
[Note 4 ; add ;]
1877, Maples v. Haggard, 58 Ga. 315 (surveys made by other than county surveyors are
not admissible without calling the persons making them).
1906, Bower v. Cohen, 126 Ga. 35, 54 S. E. 918 (map by one not a county surveyor nor
acting under court order, excluded).
1904, Cowles v. Lovin, 135 N. C. 488, 47 S. E. 610 (certificates of survey by a former county
siu-veyor now in Texas, excluded ; following Burwell v. Sneed, supra).
[Note 5; add:] '
Md. St. 1908, c. 487, p. 223, Apr. 8 (county maps issued under authority of certain prior
statutes, to be admissible to evidence water boundaries).
La. St. 1912, No. 182, p. 326, July 11 (surveys established by parish authorities ; the official
survey, duly certified, to be "conclusive evidence," unless set aside in a direct action for
fraud or gross error).
Nebr. St. 1913, c. 43, p. 142, § 2 (county surveyor's certificate of "any survey made by him
of any lands in the county," to be presumptive evidence, " unless such surveyor shall be
interested in the same").
N. D. St. 1907, c. 72, p. 98 (county surveyor's or deputy's certificate of survey of lands in
the county, to be presumptive evidence, unless he be interested therein).
[Note 7; add:]
1903, Watkins v. Havighorst, 13 Okl. 128, 74 Pac. 318 (survey without notice held not bind-
ing)-
§ 1666. Testimony at a Former Trial ; (1) Judge's Notes.
[Note 1, par. 1; add:]
1908, Richards e. Com., 107 Va. 881, 59 S. E. 1104 (judge's notes, excluded).
§ 1667. Same : (2) Magistrate's Report.
[Note 5, par. 1 ; add :]
1899, State ». Reinheimer, 109 la. 624, 80 N. W. 669 (under Code 1897, § 6227, the com-
mitting magistrate's minutes, taken by the reporter but not read over or signed by the
witness, are not admissible ; compare the Iowa rule for grand jury minutes, post, § 1669, n. 2).
1907, State v. Hoffman, 134 la. 587, 112 N. W. 103 (approving State v. Reinheimer).
§ 1668. Same : (3) Bill of Exceptions.
[Note 2, par. 1; add:]
Fla. St. 1909, c. 5897, p. 45, June 3 (amending Gen. St. § 1523 ; on a new trial, if the Court
is satisfied that evidence "used at the former trial, and incorporated in the bill of exceptions,
cannot be had," then the bill of exceptions " may be used as evidence " ; provided that "no
evidence given upon a former trial . . . shall be used as evidence . . . except as herein
provided " ; the proviso is the product of some pipe-dream, for it is absurd as it reads).
365
§ 1668 HEARSAY RULE
[Note 2 — continued]
1911, Finnes v. Selover B. Co., 114 Minn. 339, 131 N. W. 371 (evidence preserved in a
" settled case," allowed and certified as required by statute, is admissible on a later trial).
1911, Howard v. IlUnois C. R. Co., 11« Minn. 256, 133 N. W. 557 (same).
§ 1669. Testimony at a Former Trial ; (4) Notes of Stenographer, etc.
[Note 1, par. 1 ; add:]
1905, Havenor v. State, 125 Wis. 444, 104 N. W. 116 (grand-jury's stenographic reports of
testimony "are to be treated as memoranda to be used by these officials when they are called
as witnesses").
Distinguish the question whether the official stenographic report, if admissible, is pre-
ferred to other reports of the testimony (arde, § 1330).
[Note 2, par. 1 ; add :]
Canada : N. Br. St. 1913, 3 Geo. V, c. 16, § 5 (official stenographer's certified transcript
of testimony to be admissible).
P. E. I. St. 1909, 9 Edw. VII, c. 3, § 15 (official stenographer's certified transcript of testi-
mony, admissible).
Sask. St. 1907, c. 8, § 46 (official stenographer's transcript, certified by him or by the local
registrar of the court, to be admissible). ■
United States : Cal. P. C. 1872, § 869 (in cases of homicide, the testimony before the com-
mitting magistrate may be proved by a transcript in longhand certified by the reporter
appointed by the magistrate and filed with the county clerk). 1904, People v. Buckley,
143 Cal. 375, 77 Pac. 169 (the certified transcript under P. C. § 869, supra, is in such cases
the only mode of proving the testimony ; but the record must affirmatively show the lack
of such a proper certificate in the absence of a specific objection ; prior cases cited on the
interpretation of this statute). 1904, People v. Lewandowski, 143 Cal. 574, 77 Pac. 467
(preceding case approved). 1904, People v. Moran, 144 Cal. 48, 77 Pac. 777 (similar point).
la: 1904, Wiltsey's Will, 122 la. 423, 98 N. W. 294 (Walker v. Walker, supra, folloWM).
1904, Lanza v. Le Grand Quarry Co., 124 la. 659, 100 N. W. 488 (testimony taken under
the above statute is subject to the rules for depositions, ante, § 1415). 1907, Greenlee v.
Mosnat, 136 la. 639, 111 N. W. 996 (St. 1898, c, 9, § 1, supra, held not to make admissible
the former testimony of a party now disqualified by the opponent's death, the testimony
being otherwise inadmissible on the principle of § 1409, ante).
Kan. St. 1905, c. 494, § 1 (the transcript of a coinrt stenographer's notes, verified by his
affidavit or certificate, of "all the evidence of any witness" at any trial, etc., may be used
"under like circumstances and with like effect as the deposition of such witness").
1909, Wiimoth v. Wheaton, 81 Kan. 29, 105 Pac. 39 (St. 1905, c. 494, p. 8^0, making the
court-stenographer's certified transcription admissible, does not prohibit the stenographer's
oral testimony from his notes without transcription).
Ky.: 1904, Beavers v. Bowen, — Ky. — , 80 S. W. 1165 (incomplete notes by stenographer, ,
excluded ; but the part of the opinion applicable to the stipulation for using the notes as if
the stenographer were present is obscure and unsound). 1904, Fuqua v. Com^, 118 Ky. 578,
81 S. W. 923 (former testimony of a deceased witness, admissible in a criminal trial without
the defendant's consent mentioned in the above statute).
1906, Austin v. Com., 124 Ky. 55, 98 S. W. 295 (the official stenographer's bill of evidence,
under Stats. 1899, § 4643, ib. Stats. 1903, supra, held not to be preferred to, nor to be ex-
clusive of, the testimony of another stenographer verifying his notes).
Mo.: 1906, State v. Coleman, 199 Mo. 112, 97 S. W. 574 (former testimony here not ad-
mitted under the statute, because the witness was present in court).
Nev. : St. 1909, c. 44, p. 73, § 13 (official stenographer's certified transcript of notes of testi-
mony before State railroad commission, to be admissible "as if such reporter were present
and testified").
366
EXCEPTIONS: OFFICIAL STATEMENTS §1669
[Note 2 — continued]
Or. : 1911, Beard v. Royal Neighbors, 60 Or. 41, 118 Pac. 171 (applying the above statute,
nowL.O. L. §932).
Utah: Comp. L. 1907, §§ 4513, 4670 (official stenographer's notes at preliminary hearing
before magistrate, admissible when transcribed and filed).
1910, State v. Vance, 38 Utah 1, 110 Pac. 434 (stenographic notes received under the fore-
going statute; procedure of filing, discussed).
Wash. : St. 1913, c. 126, p. 386, § 6 (certified transcript by official reporter, to be evidence
of "testimony or other oral proceedings"). '
Wis.: 1905, Havenor v. State, 125 Wis. 444, 104 N. W. 116 (statute supra not mentioned
in excluding the stenographic reports of testimony before a grand jury). 1905, Wells v.
Chase, 126 Wis. 202, 105 N. W. 799 (the statute supra perversely applied ; see the citation
ante, § 1330). ,
Wyo. : St. 1909, c. 152, p. 209, § 5 (official stenographer's certified transcript of "facts,
testimony, and proceedings," with the clerk of the court's certificate "that such person is
the official reporter thereof," to be evidence).'
[Note 2, par. 2; add:]
Distinguish also the question whether the official stenographic report is preferred to other
reports (ante, § 1330).
[Note 3; add:]
1907, Degg V. State, 150 Ala. 3, 43 So. 484.
1906, Williams v. Sleepy H. M. Co., 37 Colo. 62, 86 Pac. 337 (notes certified by a stenog-
rapher not called).
[Note 4 ; add :]
N. Y. C. C. P. § 830 is amended by St. 1893, c. 595, St. 1899, c. 352, and St. 1911,
c. 764, p. 2029.
In Washington, the stenographer need not be accounted for; St. 1905, c. 26 (testimony at
a prior trial, etc., "when reported by a stenographer, or reduced to writing, and certified
by the trial judge," upon three days' notice to the opponent with service of copy, "may be
given in evidence in the trial of any civil action, etc.").
[Note 5; add:]
1911, Jones «. State, 174 Ala. 85, 57 So. 36.
1909, Wilmoth v. Wheaton, 81 ^an. 29, 105 Pac. 39. 1912, State v. Gentry, 86 Kan. 534,
121 Pac. 352.
1907, Lake v. Com., — Ky. — , 104 S. W. 1003 (official stenographer).
1909, State v. Longstreth, 19 N. D. 268, 121 N. W. 1114 (Ellsw6rth, J., diss, on not easily
intelligible grounds).
1910, Smith v. State, 60 Tex. Cr. 293, 131 S. W. 1081 (prior cases examined).
[Note 6, par. 1; add:]
1906, State v. Woodard, 132 la. 675, 108 N. W. 753, semble (minutes of testimony before
the grand jury, though not usable to impeach the witness, may be used by counsel as the
basis for framing questions).
[Note 7; add:]
1906, State v. Woodard, la., supra, n. 6. 1902, State v. Phillips, 118 la. 660, 92 N. W. 876
(under Code 1897, § 5258, providing that the grand jury's clerk shall take the testimony
and that the minutes shall be read over and signed by the witness, the minutes are receivable,
to impeach the witness; pointing out that State v. Hayden is no longer law for grand jury
minutes).
367
§ 1669 Hearsay rule
[Note 7 — continued]
1907, State v. Hoffman, 134 la. 587, 112 N. W. 103 (following State v. Phillips).
1905, Havenor v. State, Wis., supra, n. 1.
§ 1670. Reports and Inquisitions ; Domain, etc.
[Note 4; add:]
1828, Rowe v. Brenton, 8 B. & C. 737, 743 (a "caption of seisin," made by commissioners
of the Duke of Cornwall, and showing the tenants and rental of each holding, admitted).
[Note 5; add:]
Compare the cases of an official survey (ante, § 1665), in which the-application of the principle
is slightly different.
[Note 7; add:]
Compare the cases cited ante, § 1664.
§ 1671. Same : Inquisitions of Lunacy, Death, Population.
[Nate 1, par. 1; add:]
1905, King v. Gilson, 191 Mo. 307, 90 S. W. 367 (capacity of testator ; guardianship not
conclusive).
1907, Sbarbero v. ]V$iller, 72 N. J. Eq. 248, 65 Atl. 472 (bill of account by a lunatic's guardian ;
the finding of the commission of lunacy admitted).
1904, Wheelock's Will, 76 Vt. 235, 56 Atl. 1013 (raising a presumption of testamentary
incapacity).
[Note 1 ; add, as a new par. 4 :]
The following ruling went on the present analogy :
Hill V. Clifford, [1907] 2 Ch. 236 (dentists' partnership dissoluble in case of "professional
misconduct " ; order of Medical Council, having sole authority, expelling a partner for pro-
fessional misconduct, admitted to prove the misconduct ; one judge diss.).
[Note 4; add:]
Excluded: 1905, Hicks v. State, 165 Ind. 440, 75 N. E. 641 (proceedings of committal for
insanity, not admitted to impeach the person as a witness).
Admitted: 1907, Slaughter v. Heath, 127 Ga. 747, 57 S. E. 69 (will; a finding on an inquisi-
tion of lunacy "is admissible, but not conclusive," whether for or against sanity).
1910, Taylor v. Taylor, 174 Ind. 670, 93 N. E. 9 (adjudication of insanity appointing a con-
servator, held admissible, but here excluded on the principle of § 233, ante).
1910, Van Houten's Will, 147 la. 725, 124 IvT. W. 886 (finding in a proceeding for confinement
and guardianship, admissible as prima facie evidence).
1913, BuUard's Estate, McAllister v. Rowland, 124 Minn. 27, 144 N. W. 412 (adjudication
of guardianship for an insane person, made two months after a will made, admitted ; re-
pudiating the contrary ruling in Finney's Will, 27 Minn. 280, 6 N. W. 791, 7 id. 144).
1914, Bond v. State, — Tenn. — , 165 S. W. 229 (plea of insanity in Sept. 1913, inquisition
of lunacy in Nov. 1909, and verdict of insanity at a former trial in May, 1910, admitted).
1904, Keely v. Moore, 196 U. S. 38, 25 Sup. 169 (committal to an asylum, received, and dis-
charge therefrom, but not the certificate of the examining physicians ; yet Leggate v. Clark,
Mass., is approved).
1909, Ex parte Allen, 82 Vt. 365, 73 Atl. 1078 (physician's sworn certificate, admitted,
under a statute expressly making them admissible).
368
EXCEPTIONS : OFFICIAL STATEMENTS § 1671
[Note 4 — continued]
The following statute goes upon this principle :
Haw. St. 1906, No. 19, p. 22, Apr. 3 (divorce for leprosy ; that the person "has been declared
according to law to be a leper " shall be prima fade evidence).
[iVote6; add:]
1906, State v. Hopkins, 118 La. 99, 42 So. 660 (murder; coroner's certificate of death, ad-
mitted).
1905, State v. Coleman, 186 Mo. 151, 84 S. W. 978 (murder ; inadmissible).
1910, Hedger v. State, 144 Wis. 279, 128 N. W. 80 (murder; coroner's verdict excluded).
[Note 8, par. 1 ; add :]
1906, Grand Lodge v. Banister, 80 Ark. 190, 96 S. W. 742 (not decided).
1906, Dolbeer's Estate, 149 Cal. 227, 86 Pac. 695 (testator's capacity; coroner's verdict
excluded).
Del. St. 1911, c. 69, p. 145, Mar. 15 (coroner's record of inquest to be admissible to prove
cause of death, etc.).
1904, Knights Templar & M. L. I. Co. v. Crayton, 209 111. 550, 70 N. E. 1066 (verdict
admitted). 1910, People v. McMahon, 224 111. 45, 91 N. E. 104 (reading coroner's verdict
and grand jury's indictment so as to show that another person was exonerated, held im-
proper). 1913, Foster v. Shepherd, 258 111. 164, 101 N. E. 411 (death by wrongful act;
coroner's verdict admitted).
1900, Metzradt v. Modern Brotherhood, 112 la. 522, 84 N. W. 498, semble (admissible).
1913, Tomlinson v. Sovereign Camp, — la. — , 141 N. W. 950 (admitted; but with an
insinuation that Metzradt v. Brotherhood is now doubted).
1904, ^tna L. Ins. Co. v. Milward, 118 Ky. 716, 82 S. W. 364 (excluded ; best opinion on the
subject, by O'Rear, J.).
1910, Queatham v. Modem Woodmen, 148 Mo. App. 33, 127 S. W. 651 (admissible to
show death, but not the cause of it).
1911, Walden v. Bankers' Life Ass'n, 89 Nebr. 546, 131 N. W. 962 (coroner's verdict,
excluded).
1905, Puis V. Grand Lodge, 13 N. D. 559, 102 N. W. 165 (not decided). 1905, Kinney v.
Brotherhood, 15 N. D. 21, 106 N. W. 44 (coroner's inquest-blank, filled out, excluded,
no inquest having been held ; but Puis v. Grand Lodge, supra, is referred to as if it decided
something on this point).
1904, Chambers v. Modem Woodmen, 18 S. D. 173, 99 N. W. 1107 (benefit insurance;
coroner's verdict not admitted to show the cause of death).
1905, Boehme v. Sovereign Camp, 36 Tex. Civ. App. 501, 85 S. W. 444 (verdict not ad-
mitted to show suicide).
1884, Whitehurst v. Com., 79 Va. 556, 557 (murder; coroner's verdict excluded).
1904, Fey v. I. O. O. F. Ins. Soc'y, 120 Wis. 358, 98 N. W. 206 (doubted). 1913, Krogh
V. Modern Woodmen, 153 Wis. 397, 141 N. W. 276 (coroner's verdict, excluded).
[Note 9; add:]
Eng. St. 1910, 10 Edw. VII & 1 Geo. V, c. 11, § 8 (Census Ireland Act; certificate from the
General Register oflBce, purporting to be signed by the Registrar-General, to be evidence
of population in any county, etc.).
U. S. : 1907, Gregory v. Woodbery, 53 Fla. 566, 43 So. 504 (population of a town; State
census admitted, under the express provision of St. 1903, c. 5191, p. 134, § 3).
la. St. 1904, c. 8, § 8 (census of Iowa to be evidence of "all matters therein contained").
St. 1911, c. 3, p. 2, Feb. 27 (Federal census report of Iowa population, to be evidence when
published by the Secretary of State with a certificate as specified).
Minn. St. 1911, c. 200, p. 255, April 28 (Federal census reports of population of Minnesota
filed with Secretary of State to be evidence of "the facts therein disclosed").
369
§ 1671 HEARSAY RULE
[NoU 10; add:]
Accord: 1905, Campbell v. Everhart, 139 N. C. 503, 52 S. E. 201 (census list, not admitted '
to show that L. W. was "not in esse at the date of the deed").
1506, Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S. W. 665 (Federal census not admitted
to show the existence, etc., of particular persons).
CoTvlra: 1906, Priddy v. Boice, 201 Mo. 309, 99 S. W. 1055 (title by deeds executed by
minors ; a certified copy of the Federal census record of the ages of these families, covering
the censuses 1830-1890, admitted to show the ages of individuals).
1904, Murray v. Supreme Hive, 112 Tenn. 664, 80 S. W. 827 (British census report, ad-
mitted to show a person's age).
§ 1672. Sundry Instances of Returns and Reports.
[Note 1; add:]
1913, ArUngton Oil & G. Co. v. Swann, 13 Ga. App. 562, 79 S. E. 476 (State chemist's cer-
tificate of analysis of fertilizer, deposited under Civ. Code, § 1773, admissible; analysis
of the specific lot sold to the party is not necessary).
1906, People s. Michigan C. R. Co., 145 Mich. 140, 108 N. W. 772 (taxation; certain ofii-
cial acts and reports, noticed and taken as evidence).
1846, Buckley v. U. S., 4 How. U. S. 251, 258 (official appraiser's appraisement of goods-
imported, in a retiu-n filed in the custom-house, admitted).
[NoU 2; add:]
Cal. St. 1885, c. 43 (State analyst's certificate of analysis of food, drug, liquid, etc., duly
submitted to him, to be "prima facie evidence of the properties of the articles analyzed by
him"). St. 1903, c. 225, § 11 (the certificate of the State University director of the agri-
cultural experiment station, under University seal, of his analysis of a sample of commercial
fertilizer, shall be prima facie evidence, etc.).
Fla. St. 1905, No. 81, § 9 (State chemist's certificate of analysis of a sample of commercial
feedsttiff, to be evidence).
Ky. Gen. St. 1899, c. 81, § 17, Stats. 1903, § 3760 (official returns in general; quoted ante,
§ 1352, n. 11). Stats. 1903, § 2725 (report of the State inspector of mines; a certified copy
"shall be prima fade evidence of the truth of the recitals therein contained"). 1905,
Andricus' Adm'r v. PineviUe Coal Co., — Ky. — , 90 S. W. 233 (inspector's report admitted,
under the foregoing statute, to show defective ventilation of a mine).
N. Y. St. 1913, c. 559, p. 1515, § 11 (amending Consol. L. c. 45, St. 1909, c. 49, by insert-
ing § 216; written reports of public health officers and their representatives "on questions
of fact" under the health laws, to be admissible).
JV. C. Rev. 1905, § 3951 (certificate of State chemist, attested with the seal of the depart-
ment of agriculture, to be evidence of his analysis of a sample of fertilizer drawn under the
rules of the department) ; ib. § 3950 (analysis of the unlawful ingredients of a fertilizer,
published in the Bulletin of the department, to be evidence in an action to recover the
price).
U. S. ; St. 1906, June 29, § 15, c. 3592, Stat. L. vol. 34, p. 601 (for cancelling a certificate
of citizenship of a naturalized alien returning to his original country, the "statements duly
certified" of U. S. diplomatic and consular officers as to the residence of such persons
abroad are admissible).
[Note 4; add:]
1906, Austin v. Terry, 38 Colo. 407, 88 Pac. 189 (inventory admitted to show property to
be "parcel of the estate").
1908, Bailey v. Robinson, 233 111. 614, 84 N. E. 660 (statute applied).
370
EXCEPTIONS : OFFICIAL STATEMENTS § 1674
§1674. Certificates; Sundry Instances, etc.
[Note 6; add:]
1904, Taylor v. State, 120 Ga. 857, 48 S. E. 361 (certificate of honorable military discharge
and of good character, excluded).
1908, Lederer v. Saake, C. C. E. D. Pa., 166 Fed. 810 (certificate by the Librarian of Con-
gress that book-copies were duly on deposit with hini for copyright, admitted).
1909, Dunkin v. Hoquiam, 66 Wash. 47, 105 Pac. 149 (army medical examiner's certificate
of disability entitling to pension, not receivable in an action for personal injiuy). 1913,
State V. Shaw, 75 Wash. 326, 135 Pac. 20 (murder; to discredit the accused as a witness,
a miKtary certificate of discharge for bad conduct, signed by the commanding oflicer, was
excluded ; this shows the unmanageable crudeness of the common-law rule).
[Note 7; add:]
England : St. 1905, 5 Edw. VII, c. 15, § 61 (trade-marks ; the registrar's certificate to be
evidence of matters certified). St. 1907, 7 Edw. VII, c. 29, § 78, Patents and Designs Act
(comptroller's certificate of any matter or entry authorized, admissible). St. 1908, 8 Edw.
VII, c. 67, § 88 (reform school certificate of reception of juvenile offender, or of sum due,
etc., to be evidence). St. 1912, 2-3 G?o. V, c. 5, § 6 (certificate of deserting soldier's
surrender, admissible). f
Canada: Dom. St. 1903, 3 Edw. VII, c. 11, § 33 (animal contagious diseases; an order
of the Governor, or the minister, or a certified copy of the inspector's declaration, etc., is
prima facie evidence of the existence of infection, etc., in a place, vehicle, etc.) ; ib. § 35
(oflBcer's certificate is prima facie evidence of an animal's infection, etc.). St. 1914, c. 12,
§ 8 (white phosphorus matches ; certificate of an inspector as to their use, etc., to be evidence
"of the matter certified").
Newf. St. 1907, c. 19, Registration of Deeds Act, § 27 (registrar's certificate to evidence
time and fact of registration).
Ont. St. 1906, 6 Edw. VII, c. 47, § 16 (in prosecutions for Uquor offences, the certificate of
the government analyst as to "the analysis of any Uquor" is conclusive).
Sask. St. 1913, c. 36 (amending the Evidence Act, Rev. St. 1909, c. 60, by inserting §§ I2a-d;
certain certificates of inspection, etc., issued under the Canada Grain Act, to be evidence).
St. 1913, c. 64, § 124 (liquor offences ; in prosecutions the provincial analyst's certificate of
analysis of liquor, to be admissible).
Yukon St. 1904, c. 6, § 12 (Treasury board's certificate under Dom. St. 1893, c. 31, § 14, ad-
missible, on proof of signature).
United States: Ala. St. 1911, No. 119, p. 104, Mar. 9, § 9 (certificate of official analyst
of commercial feeding stuffs, under oath; to be evidence in prosecutions under the
act).
Ariz. St. 1907, c. 70, p. 109, Mar. 21, § 18 (inspector's sworn certificate of violation of
infected sheep law, to be evidence).
Ark. St. 1907, No. 398, p. 995, May 27, § 12 ("only said official analyses" of fertilizer samples
shall be admissible on any issue as to "the merits of such fertilizer" ; but did the Legisla-
ture suppose that it had power to say "only" ?)
Fla. St. 1909, c. 5936, p. 115, June 7, § 10 (State chemist or assistant's certificate of analysis
of sample of food or drug, verified by his affidavit, to be evidence), ^t. 1911,c. 6122, p. 17,
June 5, § 12 (similar).
III. St. 1909, p. 145, June 4, § 2 (vaUdation of deeds executed outside of the fstate without
a seal ; certificate of Secretary of State or court of record or judge thereof, under seal, of
the "country or other place," where executed, as to local law or usage dispensing with seal,
sidmissible).
ky. Gen. Stats. 1899, c. 81, § 17, Stats. 1903, § 3760 (ofllicial certificates in general ; quoted
ante, § 1352, n. 11).
La. St. 1908, No. 40, p. 40, June 20 (U. S. internal revenue collector's certificate showing
371
§1674 HEARSAY RULE
[Note 7 — continued]
a license or permit within one year preceding, to be prima facie evidence of illegal keeping
of liquor, etc.).
Miss. St. 1912, c. 139, p. 140, Mar. 16, § 9 (in prosecutions for offences concerning commer-
cial feeds, the State chemist's certificate of analysis to be evidence of "the facts therein
certified").
St. 1912, c. 138, p. 133, Mar. 16, § 16 (on trial of "any issue involving the merits of any
fertilizer, cottonseed meal, or fertilizing material," the State chemist's "official analysis"
of samples, under seal, to be evidence "in any reports [sic? Courts] of this State").
Mont. St. 1909, c. 94, p. 124, Mar. 6 (Secretary of State's certificate of articles of incor-
.poration duly filed, to be evidence).
N. J. St. 1911, c. 201, p. 414, § 33 (department of weights and measures ; State, county, or
municipal superintendent's certificate of correctness of weight or measure, admissible).
N. Y. St. 1909, c. 66, § 1, p. 87 (re-enacting St. 1878, c. 290, § 1, as C. Cr. P. § 514o). St.
1909, c. 65, p. 22, Feb. 17 (placing St. 1851, c. 134, in C. C. P. as § 841a).
N. D. St. 1905, c. 9, § 5, and c. 10, § 12 (State chemist's certificate of analysis of Paris green,
drugs, or medicines, to be evidence).
Or. St. 1905, c. 106 (fish warden's certificate issuance or non-issuance of a license, admis-
sible).
S. C. St. 1906, No. 97 (amending Code 1902, § 1538, to make the sworn certificate of the
chemist of Clemson Agricultural College evidence of the "analysis and commercial value
of the fertilizers or cottonseed meal" analyzed by him). St. 1909, No. 126, p. 195, § 13
(commercial fertilizers; "sworn certificate of the chemist of the Clemson Agricultural
College of South Carolina of analysis of the various brands," to be evidence of "the analysis
and commercial value of the fertilizer or cottonseed meal so analyzed").
U. S. St. 1909, Mar. 4, c. 320, No. 349 (35 Stat. L. p. 1075), § 55 (register of copyright's
certificate under seal, to be evidence of "the facts stated therein" as to copyright).
Utah St. 1913, c. 66, § 3 (food adulteration; State chemist's certificate of "any analysis-
or examination of any article" mentioned, to be evidence of the "facts set forth in such
certificate").
Va. St. 1904, Extra, c. 565 (amending Code 1887, § 1345 ; county-clerk's certificate of a
recorded log-brand or mark, to be evidence of it). St. 1908, c. 338, p. 598 (amending
Code 1887, § 3334).
Wis. St. 1909, c. 196, Stats. § 2276a (county judge's certificate under seal of names of heirs
and interests of each, admissible when recorded in the registry of deeds). St. 1913, c. 486,
p. 550 (Stats. § 2276a, providing for the county judge's certificate of heirship, extended to
include homesteads under U. S. land laws).
[Note 11; add:]
Nevjf. St. 1904, c. 3, Rules of Court 50, par. 29 (similar to Man. Rev. St. 1902, c. 40, rule
164, inserting "expert and" before "scientific").
Yukm Consol. Ord. 1902, c. 17, Ord. XL, R. 498 (similar to Man. Rule 164, omitting the
word "actuaries").
§ 1675. Notary's Certificate of Protest.
[NoU9; add:]
1904, Ewen v. Wilbor, 208 111. 492, 70 N. E. 575 (inland promissory note).
[NoU 11; add:]
Alta. St. 1910, 2d sess.. Evidence Act, c. 3, §§ 38, 39.
Out. St. 1909, c. 43, §§ 35, 36 (like R. S. 1897, c. 73, §§ 34, 35).
Sash. St. 1907, c. 12, Evidence Act, §§ 17, 18, 19.
Yukon St. 1904, c. 5, §§ 28, 29.
372
EXCEPTIONS : OFFICIAL STATEMENTS § 1676
[Note 11 — continued]
Me. St. 1905, c. 58 (notaries' powers amended).
N. C. Code 1883, § 49 seems to be omitted in Rev. 1905.
§ 1676. Certificates of Sxecution of Deeds.
[Note 2; add:]
Ala. St. 1911, No. 52, p. 31, Feb. 20, § 2 (corporate conveyances, executed by president,
etc., when recorded, are admissible "without further proof").
Fla. Const. 1885, Art. 16, § 21 (lawfully recorded deeds and mortgages are admissible "with-
out requiring proof of the execution").
III. St. 1907, May 28, p. 376, § 5 (horse-shoer's lien).
N. C. St. 1913, c. 69, p. 115 (making admissible certain certificates of acknowledgment by
consuls, etc., which lack a seal).
Pa. St. 1911, May 11, p. 259 (sheM's d^eds ; prothonotary's certificate of acknowledgment
under Court seal, when the deed is recorded, suffices).
Tex. St. 1907, c. 165, p. 308 (Rev. Civ. St. § 2312, amended, for defectively acknowledged
deeds).
[Note 11; add:]
Br. C. St. 1906, 6 Edw. VII, c. 23, § 62 (like Rev. St. 1897, c. Ill, § 58).
Yukon St. 1904, c. 5, § 27 (like N. Sc. Rev. St. 1900, c. 163, § 26, inserting "biU of sale or
other document").
Colo. St. 1909, c. 1, p. 33, Apr. 23 (enumeration of officers in foreign countries whose cer-
tificates under seal of acknowledgment of a deed will suffice).
Ga. : 1904, Long v. Powell, 120 Ga. 621, 48 S. E. 184 (U. S. consul's certificate of acknowl-
edgment, admissible under Code § 3621).
La. : 1905, Werner v. Marx, 113 La. 1002, 37 So. 905 (power of attorney from Germany, held
duly authenticated by a U. S. consul's certificate to the signature and seal of the German
police officer taking the acknowledgment, under Rev. St. 1876, § 1436).
Minn. : 1907, Tucker v. Helgren, 102 Minn. 382, 113 N. W. 912.
Nebr. : 1903, McKenzie v. Beaumont, 70 Nebr. 179, 97 N. W. 225 (statute applied to a
mortgage).
N. Y. C. C. P. 1877, § 937 ("any instrument, except a promissory note, a bill of exchange,
or a last will, may be acknowledged, or proved, and certified, in the manner prescribed by
law for the taking and certifying the acknowledgment or proof of a conveyance of real
property; and thereupon it is evidence, as if it was a conveyance of real property") ; ib.
§ 946 (conveyance of real property; quoted ante, § 1651, n. 5). St. 1913, c. 208, p. 369
(amending Consol. L. c. 18, St. 1909, c. 23, § 105, relating to notary's powers to certify the
execution of deeds for use within the founty)]. St. 1913, c. 209, p. 371 (amending Consol.
L. c. 50, St. 1909, c. 52, § 311, as to certificates of execution of deeds without the
State).
S. D. St. 1907, c. 3, p. 3 (amending Civ. C. 1903, §§ 970-973, as to officers taking acknowl-
edgments).
U. S. St. 1904, April 19, c. 1398, Stat. L. vol. 33, p. 186 (when a U. S. land-office register
is subpoenaed to produce any original application for entry, etc., in any U. S. court or State
court of record, the commissioner of the general office shall transmit it to him with a cer-
tificate of authenticity under official seal, and it shall then be received in evidence). St.
1909, Mar. 4, c. 320, No. 349 (35 Stat. L. p. 1075), § 43 (assignment of copyright executed
in foreign country ; certificate of acknowledgment under official seal of U. S. consular offi-
cer or secretary of legation, admissible).
Wash. : 1913, Koloff v. Chicago M. & P. S. R. Co., 71 Wash. 543, 129 Pac. 398 (Bulgarian
power of attorney to sue ; certificate of acknowledgment, not admitted).
373
§ 1676 HEARSAY RULE
[Note 11 — continued]
W. Va. : 1904, Rutherford v. Rutherford, 55 W. Va. 56, 47 S. E. 240 (certificate of acknowl-
edgment of a release unrecorded, or not entitled to be recorded, inadmissible).
Compare the presumption of execution for a recorded, or acknowledged deed, post, § 2521.
[Note 12; add:]
1904, Markey v. State, 47 Fla. 38, 37 So. 53.
The jurat suffices as prima facie evidence of the taking of the oath, even though the
witness if called to the stand cannot remember the circumstances (precisely as in the attes-
tation of a subscribing witness, anie, § 1302) : 1906, Komp ». State, 129 Wis. 20, 108 N. W.
46.
[Note 13; add:]
Alta. St. 1910, 2d sess., Evidence Act, c. 3, § 40 (officers authorized to take affidavits).
Ont. R. S. 1897, c. 73, § 37, Ont. St. 1909, c. 43, § 38 (officers authorized to take affidavits).
Sask. St. 1907, c. 12, Evidence Act, § 39 (officers authorized to take affidavits).
III. : 1914, Tompkins v. Tompkins, 257 111. 662, 100 N. E. 965 (officer taking a deposition
without the State of Illinois acts by virtue of Illinois authority to prepare the testi-
mony for use in an Ilfinois court, and not by virtue of the foreign State's authority,
hence the authority of the foreign State need not be shown; see comments on this
case in the Illinois Law Review, IX, 61).
Or. St. 1909, c. 42, p. 90 (amending § 819 of Bell. & C. Annot. Codes & Stats.).
§ 1677. Certified Copies ; General Principle.
[Note 3; add:]
"As the costs were in proportion to the length of the pleadings, it will readily be seen that
the solicitors had every temptation to prolixity. Thus, a witness testffied before the Chan-
cery Commission of 1852 (First Report of the Commission, App. A, p. 180) : ' If I draw
a document of 120 foUos, I get £6, and if I compress that into 30 folios I get only 30 shillings.
In fact, the worse the business is done, the better it is paid for' ; a folio being, as I believe,
15 fines of 6 words each. . . . Then again, every party had to take office copies of every
paper filed, or at least pay for them, on penalty of incurring the displeasure of the officials "
(John Marshall Gest, " The Lawyer in Literature," 1913, p. 23).
[Text, p. 2107; add a new par. (4) at the end of § 1677 :]
(4) Or course, the original itself always suffices; the statutory per-
mission for copies is not meant to be exclusive {ante, § 1186).
§ 1678. Certified Copies ; Certificate as to ESect, etc. of Original.
[Note 1; add:]
1905, Kelley v. Laconia, L. Dist., 74 Ark. 202, 85 S. W. 249 (U. S. land office commissioner's
letter as to entries in the office, excluded).
1905, Glos V. byche, 214 111. 417, 73 N. E. 757 (tax judgment ; the clerk's certified copy of
the proceedings "so far as relates to the premises described" held sufficient, where the only
material part was in fact included ; the clerk's conclusion being thus immaterial).
1911, General Conference Ass'n v. Michigan S. & B. Ass'n, 166 Mich. 504, 132 N. W. 94
(probate register's certificate to an administrator's appointment "as appears by the rec-
ords," held inadmissible).
1909, Sampson v. Northwestern Nat'l L. Ins. Co., 85 Nebr. 319, 123 N. W. 302 (State
auditor's certificate of securities on file, etc., excluded).
Compare the cases cited post, §§ 2109, 2110.
374
EXCEPTIONS : OFFICIAL STATEMENTS § 1680
[Note 2; add:]
la. St. 1911, c. 105, p. 104, Apr. 15 (U. S. internal revenue collector's "certified copy" of
' the names of persons who have paid liquor tax, to be evidence of such person's being engaged
in sale, etc., of liquors).
1906, Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064 (State land commissioner's certifi-
cates of contents of his records, admitted under the statute ; but the precise distinctions
taken are not clear).
Compare the citations post, §§ 2109, 2110.
1911, State V. Polk, 66 Wash. 411, 119 Pac. 846 (certificate of result of local option election,
admitted under Rem. & Bal. Code, § 6297).
[Note 3; add:]
la. : 1906, Coltonis Estate, 129 la. 542, 105 N. W. 1008 (a certificate of the lack of arecord
of a particular document is inadmissible without statute).
Ky. : 1913, Com. v. O'Bryan, U. & Co., 153 Ky. 406, 155 S. W. 1126 (official certificate that
a document is not on file, excluded).
N. Y. St. 1909, c. 425, p. 906 (adding § 931c to C. C. P. ; State comptroller's certificate
of extract from records, stating that it contains all relating to a certain piece of land, ad-
missible).
[Note 4; add:]
1905, State v. Rosenthal, 123 Wis. 442, 102 N. W. 49 (the foregoing statute is not exclusive
of the method of proof noted in § 1244, ante). Wis. St. 1907, c. 276 (amending Stats. § 4163).
§ 1679. Same : Authentication of the Copy.
[Note 5; add:]
and ante, § 1653, par. (4), § 1635, n. 4.
[Note 6; add:]
some cases are collected in Lalakea v. Hilo Sugar Co., 1904, 15 Haw. 570 (defective certifi-
cate of acknowledgment).
§ 1680. Certified Copies of Miscellaneous Public Documents.
[Note 1 ; add :]
England : St. 1882, 45 & 46 Vict. c. 50, § 24 (Municipal Corporations Act ; a written copy
of a by-law of a municipal council "authenticated by the corporate seal" is admissible).
1905, Robinson v. Gregory, 1 K. B. 534 (statute applied) ; St. 1905, 5 Edw. VII, c. 15, § 50
(trade-marks ; the registrar's certified printed or written copies of the register, under seal
of the patent-office, to be admissible "without further proof of production of the originals ") ;
ib. § 51 (the registrar's purporting certificate of an entry, admissible). St. 1907, 7 Edw.
VII, c. 29, § 79, Patents and Designs Act (certified copies of registers, patents, etc., kept
under this Act, under seal of the patent office and certified by the comptroller, admissible).
St. 1908, 8 Edw. VII, c. 67, § 88 (reform school certificate, and rules ; certified copy by
chief inspector, admissible).
Canada: Dominion: St. 1903, 3 Edw. VII, c. 58, §§ 26, 27 (railway act; similar to
§§ 26, 27 of Ont. St. 1906, c. 31, cited infra, except that under § 26 copies by the minister
or inspecting engineer are also included). St. 1904, 4 Edw. VII, c. 15, § 18 (certified copy,
by the deputy minister of commerce or by a justice of the peace, of the oath of a grain
inspection officer, admissible).
Alberta : St. 1906, c. 3, § 7, par. 65 (a regulation or order in council is provable by copy
attested by "the signature of the clerk of the executive council ; an order in writing signed
by the council member acting as provincial secretary and purporting to be by command of
375
§ 1680 HEARSAY RULE
[Note 1 — continued]
the Lieutenant-Governor shall be received as his order ") ; ib. § 9 (acts of the Legislative
assembly are provable by clerk's certified copy under seal of the Province, etc., as in Yukon
Consol. Ord. 1902, c. 1, § 10). St. 1906, c. 57, § 535 (certificate of registration of veterinary
surgeon, "purporting to be signed and issued by the registrar and under the seal of the asso-
ciation," admissible) ; c. 28, §§ 64, 65 (provision for proof of registration as a medical prac-,
titioner, by certificate). St. 1910, 2d sess.. Evidence Act, c. 3, § 24 ("Letters patent under
the Great Seal of the United Kingdom" or any British dominion, provable by "exemplifi-
cation thereof, or of the enrolment thereof, under the Great Seal under which the same
may have issued ") ; ib. § 26 (substantially like Ont. R. S. 1897, c. 73, §§ 22, 23) ; ib. § 29
(like Can. St. 1893, c. 31, § 12, but restricted to documents in Alberta and corporation,
chartered in Alberta and carrying on business therein) ; ib. § 32 (like Eng. St. 1851, c. 99
§ 14, omitting the clause "and no statute exists," etc.) ; ib. § 34 (like Can. St. 1893, c. 31,
§14).
British Columbia: St. 1903-4, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, § 2
(repeals § 20 of Rev. St. 1897, c. 71, and substitutes another requirement, as quoted ante,
§ 1639, n.. 2). St. 191 1, 1 Geo. V, c. 33, § 102 (coal mines ; inspector's certified copy of special
rules, admissible). St. 1912, 2 Geo. V, c. 17, § 93 (certificate of timber mark registration,
by Minister of Lands Department, to be evidence, without proof of signature).
Manitoba: St. 1908, 7-8 Edw. VII, c. 63, § 16 (telephones and telegraphs; certified copy
of documents in the Department, by the Minister, to be evidence).
Ontario: St. 1904, 4 Edw. VII, c. 23, § 67 (certified copy of an assessment roll shall be
received without "the production of the original assessment roll"). St. 1906, 6 Edw. VII,
o. 11, § 55 (mining recorder's oflSce; every copy of "any entry in any of the said books, or
of any documents filed" in the office, certified by the recorder, shall be "evidence of the
matters therein contained"). St. 1906, 6 Edw. VII, c. 30, § 59, par. 12 (railway maps,
surveys, etc., when filed, provable by copy certified by the registrar of deeds or the secre-
tary). St. 1906, 6 Edw. VII, c. 31, § 26 (documents signed by the chairman or secretary
of the railway and municipal board, admissible as copies to prove any regulation, etc.) ;
ib. § 27 (the secretary's certified copy of any document deposited with the board is admis-
sible ; the secretary's certified copy, under seal of the board, of any document in the custody
of the board or of record with it, is admissible). St. 1909, c. 43, § 21 (like R. S. 1897, c. 324,
§ 12) ; ib. § 23 (like ib. §§ 22, 23) ; ib. § 26 (like ib. § 26) ; ib. § 28 (like ib. § 28). St.
1911, 1 Geo. V, c. 41, § 44 (surveyor's register; re-enacting R. S. 1897, c. 180, § 45).
Prince Edward Island: St. 1906, 6 Edw. VII, c. 6, §§ 25, 30 (certified copies, by the regis-
trar-general or his assistant, of the records of birth, marriage, and death, admissible).
St. 1909, 9 Edw. VII, c. 6, § 1 (repeals St. 1898, 61 Vict. c. 3).
Saskatchewan: St. 1906, c. 10, § 21 (records, documents, etc., in the department of public
works, are provable by copy attested by the signature of the commissioner or deputy) ;
c. 28, §§ 61, 62 (provision for certified copies of the ofiicial register of the medical profes-
sion). St. 1907, c. 12, Evidence Act, § 10 (like Can. St. 1893, c. 31, § 12) ; ib. § 12 flike
Eng. St. 1851, 14-15 Vict. c. 99, § 'l4) ; ib. § 13 (like Alta. St. 1910, 2d sess., c. 3, §§ 36,
37). St. 1909, c. 9, § 62 (records and documents belonging to or deposited in the de-
partment of public works; copy attested by minister or deputy minister, receivable).
St. 1913, c. 64, § 123 (liquor license; attorney-general's certificate admissible). 1913,
R. V. Hutchins, Sask. S. C, 12 D. L. R. 648 (certified copy of clerk's record of marriage
license, etc., in Minneapolis, admitted under Can. Evidence Act, § 23).
Yukon: Consol. Ord. 1902, c. 1, § 8, par. 54 (Commissioner's regulation or order, provable by
written copy attested by the Territorial secretary) ; ib. § 10 (Territorial secretary's certified
copies of ordinances, under Territorial seal, " shall be held to be duplicate originals and also
to be evidence, as if printed by lawful authority, of such ordinances and of their contents ") ;
c. 6, § 20 (registry of vital statistics, provable by certified extract) ; c. 48, §§ 38, 48 (provi-
sion for certified copies of the official registry of medical practitioners) ; c. 5d, § 28 (provi-
sion of similar purpose for pharmaceutical practitioners) ; c. 61, § 11 (certified copy, by
376
EXCEPTIONS : OFFICIAL STATEMENTS § 1680
[Note 1 — continued]
the clerk of the territorial court or his deputy, of a filed declaration of benevolent incorpo-
ration, etc., admissible) ; c. 76, § 101 (provision for chief inspector's certificate of a license,
in liquor cases) ; ib. § 102 (provision for certified copy of a regulation, in liquor cases),
St. 1904, c. 5, § 5 (proclamation, etc., of Governor-General ; like Dom. St. 1893, c. 31, § 8) ;
ib. § 6 (proclamation, etc., of a Lieutenant-Governor, etc., or of the Yukon Commissioner ;
like Dom. St. 1893, c. 31, § 9) ; ib. § 9 ("Proclamations, treaties, and other acts of state of
any foreign State or of any British colony may be proved by the production of a copy pur-
porting to be sealed with the seal of the foreign State or British colony to which the original
document belongs") ; ib. § 11 (like Dom. St. 1893, c. 31, § 1^ inserting "grant, map, plan,
report, letter" and "belonging to or deposited in" for the first class, and "or of this Terri-
tory or of any Territory of Canada" for the second class) ; ib. § 13 (official books ; like Dom.
St. 1893, c. 31, § 17, adding "or of this Territory"); ib. § 14 (like Dom. St. 1893, c. 31,
§ 13) ; ib. § 31 (like Dom. St. 1893, c. 31, § 14, inserting "grant, map, plan, will, deed") ;
ib. § 17 (shipping register; like N. Br. Consol. St. 1877, c. 46, § 15).
United States : Alabama: Code 1897, § 5086 (U. S. revenue- liquor-license may be proved
by parol evidence). 1904, Burton v. Dangerfield, 141 Ala. 285, 37 So. 350 (certified trans-
cript of a constable's bond recorded with the probate judge, admitted under Code § 1816).
Arizona: St. 1905, c. 51, § 65 (certified copy of the official record of live-stock brands is
admissible).
California: Pol. C. 1872, § 3083, as amended by St. 1905, c. 107 (State registrar's record of
marriages and births, provable by his certified copy). St. 1907, c. 236, p. 296, Mar. 15
(similar for State registrar's certificate of death; amending § 15 of St. 1905).
Colorado : St. 1905, c. 100, § 14 (county clerk's certified copy of electoral registration-book,
admissible). St. 1907, c. 112, p. 238, Apr. 9, § 21 (State registrar's certified copy of register
of birth or death, admissible). St. 1911, c. 90, p. 219, June 5, §§ 1, 7, 8, and St. 1913, c. 47,
p. 142, Mar. 31, §§ 1, 7, 8 (record of stock-brand, provable by copy certified by State board
of stock inspection commissioners).
Delaware: St. 1909, c. 66, p. 121, Apr. 15, § 10 (certified copy of county recorder's record
of births, marriages, and deaths, admissible). St. 1911, c. 69, p. 145, Mar. 15 (certffied
copy of coroner's inquest record, admissible). St. 1913, c. 84, p. 206, Mar. 31, § 8 (same
for certified copy of marriage register of State registrar of vital statistics or of county
recorder). St. 1913, c. 85, p. 219, Mar. 31, § 14 (same for birth register of same officers).
Florida: St. 1907, c. 5688, p. 201, May 11 (amending Gen. St. § 3558; U. S. revenue
license or tax stamp provable by certified copy).
Hawaii: St. 1905, No. 67, p. 132, Apr. 26 (certified copy of record of U. S. liquor tax, ad-
missible). St. 1907, No. 119, p. 243, Apr. 33, § 68 (foregoing statute repealed). St. 1907,
No. 8, p. 7, Mar. 5 (any book or document "deposited in the building set apart for public
archives," provable by certified copy by Secretary of Territory or by Librarian).
Idaho: St. 1911, c. 191, p. 631, Mar. 9, § 21 (State Registrar's certified copy of birth and
death record, admissible).
Illinois: 1904, Tifft v. Greene, 211 111. 389, 71 N. E. 1630 (copies of records of tax-sales,
etc., held inadmissible because certified by the clerk of the county court, instead of by the
proper custodian the county clerk, though the same person filled both offices). 1910,
Prairie du Rocher v. Schoening K. M. Co., 248 111. 57, 93 N. E. 425 (the certified copy under
the statute is evidence that the ordinance has been duly passed). 1913, Decatur v. Barteau,
260 111. 612, 103 N. E. 601 (city ordinance provable by the city clerk's certified copy under
seal, under Rev. St. c. 24, § 65, supra).
Indiana: St. 1905, c. 53, § 19 (railroad commission's certified or printed copies of rates,
regulations, etc., admissible).
Kansas: St. 1905, c. 323 (amending one of the above statutes; quoted ante, § 1225, n.l).
St. 1907, c. 168, p. 267, Feb. 15 (transcript of county records, lost, stolen, or destroyed,
made from documents of the State Historical Society and certified by the secretary under
its seal, to be admissible).
377
§ 1680 HEARSAY RULE
[Note 1 — continued]
Kentucky: St. 1906, c. 27 (amending Stats. 1903, § 4545, by adding, for the Secretary of
State, that "copies of records and papers in his office, certified by him, shall in all cases be
evidence equally with the originals," and that when presented, "the same shall be prima
facie evidence of their contents, and the personal presence of the Secretary of State as a
witness in such case shall be dispensed with, provided that such records shall be mailed under
seal to the circuit court clerk" like depositions). 1910, Henderson M. & M. Co. v. Nichol-
son, — Ky. — , 126 S. W. 139 (assistant mine-inspector's report, under Stats. § 2739, ad-
mitted).
Maine: St. 1907, c. 99, p. 104, Mar. 21 (marriage record by authorized clergyman; certi-
fied copy by town clerk, admissible). St. 1909, c. 161, p. 163, Mar. 29 (same).
Massachusetts: 1913, Com. v. Merrill, 215 Mass. 204, 102 N. E. 446 (copy of a constitution
of the Order of Owls, signed by the Supreme Secretary, not admitted as a certified copy of
the charter of a foreign beneficiary insurance corporation, under the statutes in force at the
time).
Michigan: 1906, Murphy v. Gady, 145 Mich. 33, 108 N. W. 493 (exemplified copy of U. S.
pension-vouchers, admitted, under U. S. Rev. St. 1878, § 882, cited infra).
Minnesota: St. 1909, c. 127, p. 120, Mar. 29 (drainage boards, repealing St. 1907, c. 191 ;
by § 30, certified copy of records of board of supervisors to be evidence). St. 1911, c. 200,
p. 255, April 18 (certified copies of Federal census reports filed in the office of the Secretary
of State, admissible).
Missouri: 1905, Florscheim b. Fry, 109 Mo. App. 487, 84 S. W. 1023 (under Rev. St. 1899,
§ 3098, a certified copy of articles of incorporation in Illinois was excluded because the Illi-
nois law authorizing the Secretary of State to keep or record was not proved ; unsound,
because the seal of ^State is of itself an authority for the purpose, ante, § 1679, par. 6, post,
§ 2163) ; 1906, Stewart v. L. B. Land Co., — Mo. — , 98 S. W. 767 (properly certified copies
of platbooks admissible under Rev. St. 1899, § 3094, supra).
Nebraska: 1905, Rieck v. Griffin, 74 Nebr. 102, 103 N. W. 1061 (copy of sections of the
Arkansas statutes, under seal of the Secretary of State, admitted).
New Hampshire: St. 1911, c. 133, § 24 (Secretary of State's certified copy of motor vehicle
registration certificate or license, to have the same effect as the original).
New Jersey: St. 1912, c. 260, p. 465 (amending St. 1900, c. 150, § 27).
New Mexico : St. 1905, c. 79, § 8 (certified copy of certificate of incorporation, by county
recorder or Secretary of the Territory, admissible). St. 1907, c. 49, p. 71, § 10 (territorial
engineer's records, provable by certified copy) ; § 71 (water-right records ; county recorder's
certified copies, admissible). St. 1909, c. 76, p. 210, § 3 (Secretary of Territory's or county
recorder's certified copy of certificate of organization of water user's association, admissible).
St. 1912, c. 82, § 76 (State land office; commissioner's certified copies of records, admissible).
New York : St. 1909, c. 65, p. 22, Feb. 17 (adding § 931a to the C. C. P. ; exemplified copy of
the designation of a person on whom to make service for a corporation, with a certificate of
non-revocation, to be evidence). St. 1912, c. 97, p. 167 (amending C. C. P. § 956, by pro-
viding for U. S. consular certified copies, and by including documents "on file"). St. 1913
c. 71, p. 122 (amending Consol.L.c.45,St. 1909,c.49, § 296, as to certified copies of licenses,
for undertaking and embalming). '
North Carolina : Revision 1905, § 300 (like Code 1883, § 662). Rev. 1905, § 1616 (like Code
§§ 715, 1342). Rev. 1905, § 1593 Oike Code § 1340). Rev. 1905, § 1594 (like Code §1338).
Rev. 1905, § 1595, St. 1899, c. 277, § 2 (violation of town ordinances ; mayor's certified copy
of the ordinance admissible). Rev. 1905, § 1596 (like Code § 1341). Rev. 1905, § 1617
(copies of "bonds, contracts, or other papers" concerning the "settlement of any account"
between the U. S. and an individual, or "extracts therefrom when complete on any one
subject," or copies of "books or papers on file or records of any public office of the State or
the U. S.," are receivable when certified under official seal by "the chief officer in said office
or department"). Rev. 1905, § 4684 (papers in the office of the insurance commissioner may
be proved by his certified copy under official seal, and conveyances, etc., executed by him
378
EXCEPTIONS : OFFICIAL STATEMENTS < § 1680
[Note 1 — eontinued]
under seal may be recorded with like effect as deeds). Rev. 1905, § 5070 (State librarian's
certificate, under his and the ofiicial seal, "to the authenticity and genuineness of any
document, paper, or extract from any document, paper, or book or other writing which may
be on file in his ofiice," is admissible). St. 1911, c. 175, p. 328 (Secretary of State's certified
copy of certain maps of Cherokee lands, admissible). 1907, State v. Dowdy, 145 N. C. 432,
58 S. E. 1002 (illegal sale of liquor ; U. S. revenue collector's certified copy of a Federal
liquor license admitted, the license being part of a record kept under U. S. Rev. St. § 3240,
and the copy being admissible under N. C. Rev. Code 1905, §§ 1616, 1617).
North Dakota: 1912, Peterson's Estate, 22 N. D. 480, 134 N. W. 751 (Norwegian parish
records, verified by the keeper, the district judge, the royal minister of religion, and the
U. S. consul-general, not admitted ; in the absence of statute, the great seal of State alone
suflBces).
Oregon: St. 1905, c. 51 (C. C. P. § 731, supra, amended so as to read, "certified by the
clerk, or other person having the legal custody of the record, with the seal of the Court
affixed thereto, if there be a seal, together with the certificate of the chief judge, or presiding
magistrate, that the certificate is in due form and made by the clerk or other person having
the legal custody of the original"). St. 1909, c. 199, p. 293 (U. S. internal revenue license,
etc., provable by collector's certified copy). St. 1911, c. 12, p. 30 (amending § 755 of
Bell. & C. Annot. Codes & Stats.). St. 1911, c. 172, p. 256 (certified copy of articles of in-
corporation for irrigation company, etc., admissible). 1909, State v. McDonald, 55 Or.
419, 104 Pac. 967 (certified copy of New Zealand official registry of death, held properly
authenticated under B. & C. Comp. § 755, subd. 8).
South Carolina: 1906, Montgomery v. Seaboard A. L. R. Co., 73 S. C. 503, 53 S. E. 987
(under Code 1902, §§ 2051, 2888, the Secretary of State's certified copy of a charter of con-
solidated railroads is not admissible).
South Dakota : St. 1905, C. 125, § 8 (Secretary of State's certified copy of articles of incor-
poration for mutual life insurance, admissible). St. 1911, c. 256, p. 447, § 28 (public bank
examiner ; certified copies under official seal of all records and papers in his office, admissible).
Tennessee: St. 1909, c. 384, p. 1365 (records of U. S. internal revenue collector, showing
payment of liquor tax, etc., provable by certified copy).
Texas: 1906, Smithers c. Lowrance, 100 Tex. 77, 93 S. W. 1064 (State land commissioner's
records; certified copy admitted).
United States: St. 1906, June 29, § 5, c. 3591, Stat. L. vol. 34, p. 592 (contracts, reports,
schedules, etc., of common carriers, preserved as public records by the Interstate Commerce
Commission, shall be "received as prima facie evidence of what they purport to be" ; and a
copy certified by the secretary of the Commission under its seal is receivable). 1905,
Howard v. Perrin, 200 U. S. 71, 26 Sup. 195 (certified copy of land-office papers, admitted
under Rev. St. § 891). 1906, U. S. v. Pierson, 145 Fed. 814, C. C. A. (effect of a certified
transcript of Treasury department records, in an action for official delinquency, under U. S.
Rev. St. 1878, § 886).
Utah: St. 1905, c. 120, Mar. 16, § 20 (State Registrar's record of births and deaths, provable
by his copy properly certified). St. 1905, c. 108, Mar. 9, § 17 (State engineer's maps and
records provable by certified copies). St. 1911, c. 106, p. 152, § 35 (liquor offences; U. S.
internal revenue collector's certified copy of application for revenue stamp, to be evidence).
Vermont: 1906, Clement v. Graham, 78 Vt. 290, 63 Atl. 146 (St. 1904, No. 24, p. 27, concern-
ing the State auditor's certified copies, considered). St. 1906, No. 118, § 4 (amends Stats.
1894, § 3765, supra).
Virginia: St. 1908, c. 338, p. 598 (amending Code 1887, § 3334).
Washington: 1904, James v. James, 35 Wash. 650, 77 Pal:. 1080 (a public record from an-
other, State, is not provided for under the above statutes) ; 1906, State v. Kniffen, 44 Wash.
485, 87 Pac. 837 (deputy county clerk's certified copy of a marriage record in Michigan,
excluded, because not certified according to U. S. Rev. St. 1878, § 906).
Wisconsin: 1906, Rohloff v. Aid Ass'n, 130 Wis. 61, 109 N. W. 989 (certified copy of a death
379
§1680 HEARSAY RULE '
[Note 1 — continued]
certificate filed in the register's ofiice under Rev. St. 1898, §§ 1024, 1024a, excluded, as
"not the best evidence"). St. 1909, c. 219, Stats. § 186 (land office records ; certified copy
by chief clerk or any commissioner under commissioners' seal, admissible).
Wyoming: St. 1907, c. 24, p. 30 (papers, etc., lawfully on file with the State engineer or
State board of control, provable by certified copy).
Compare also the rule against merely certifying to the effect or non-existence of the docu-
ment {ante, § 1678), and the rule requiring the copy to include the whole of the document
(post, § 2109).
[iVo«e3, p. 2138; add:]
Yet where the local State has not provided for proof of copies of records in other States, the
Federal statute may have to be relied on :
1905, Wilcox V. Bergman, 96 Minn. 219, 104 N. W. 955 (North Dakota deed-records, ad-
mitted under the Federal statute, though the local statute made no provision for certified
copies from other States) ; 1904, James v. James, 35 Wash. 650, 77 Pac. 1080. This doctrine,
however, should not lead us to ignore the common-law propriety of using a copy duly
certified according to the laws of the other State (ante, § 1633, n. 1, § 1652, n. 4).
§ 1681. Certified Copies of Judicial Records.
[Note. 12; add:]
England : St. 1908, 8 Edw. VII, c. 67, § 88 (Children Act; clerk's certified copy of court
order, admissible).
Canada : Dominion : 1910, Musgrave v. Anglin, 43 Can. Sup. 484 (certified copy by a Quebec
notary, of a will in his custody held admissible under U. S. Rev. St. 1900, c. 163, § 22, and
not under § 27 ; the will had not been probated ; affirming N. Sc. decision ; the opinions are
interesting, but show how the modern judge has lost understanding of the general principles
of the law of evidence, and yields intellectual slavery to the statutes on the subject).
Alberta : St. 1910, 2d Sess., c. 3, § 35 (like Ont. Rev. St. 1897, c. 73, § 31) ; ib. § 43 (like P. E. I.
St. 1889, c. 9, §§ 55, 56) ; ib. § 44 (probate of a will or a copy under seal of the District'
or Supreme Court, to be evidence) ; ib. § 45 (like B. C. Rev. St. 1897, c. 71, § 37, but sub-
stituting "unless the Court otherwise orders" for the proviso) ; ib. § 46 (like ib. § 38).
British Columbia: St. 1903-4, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, § 2
(repeals § 20 of Rev. St. 1897, c. 71, and substitutes another requirement, as quoted ante,
§ 1639, n. 2). St. 1908, 8 Edw. VII, c. 2, § 51 (registration of dental practitioner, provable
by certificate of registrar under seal of college, without proof of signature). St. 1910, 10
Edw. VII, c. 7, § 163 (Companies Act; like Rev. St. c. 44, § 135).
Newfoundland: St. 1904, c. 3, Rules of Court 33, par. 3 (like Rules of 1892).
Nova Scotia : 1909, Angle v. Musgrave, 44 N. Sc. 38 (Quebec notary's certified copy of a
will on record in his office, admitted without further proof, under Rev. St. c. 163, § 27,
though the will had not been probated in Nova Scotia ; Townshend, C. J., diss.).
Ontario: St. 1909, c. 43, § 32 (like R. S. 1897, c. 73, § 31) ; ib. § 42 (like R. S. 1897, c. 73,
§ 41, but abolishing the notice required, and making slight changes) ; ib. § 43 (like ib. § 42,
with slight changes).
Saskatchewan: St. 1907, c. 12, Evidence Act, § 14 (like Ont. Rules of Court 1897, § 496);
§ 20 (will is provable by the probate of a certified copy by the clerk of court ; but the Court
"may order the original will to be produced in evidence or may direct such other proof" as is
needed to authenticate it, etc. ; this to apply also to wills probated out of the province, if
the original will was deposited and the court had jurisdiction). St. 1907, c. 12, § 15, now
Rev. St. 1909, c. 60, Evidence Act, § 16, as amended by St. 1912, c. 42, § 16 (like Can. St.
1893, c. 31, § 10, but including the superior courts of Scotland and the railway commissioners
of Canada). 1909, In re Cheshire, 2 Sask. 218 (exemplification of letters probate in Eng-
land under the seal of the High Court of England, sufficient).
386
EXCEPTIONS ; OFFICIAL STATEMENTS § 1681
[Nvte 12 — continued]
Yukon: St. 1904, c. 5, § 15 (par. (1) : "a copy of any document, writing, or proceeding,
filed in any court in this Territory, shall be received as evidence to the same extent as the
original, if it is certified under the seal of the court, or by the proper officer under his hand" ;
par. (2) : "a copy of any order for judgment, or of the entry of the judgment in the docket
of judgments, certified under the hand of the proper officer, suffices to prove the judgment
without producing other part of the record"); ib. § 16 (like Dom. St. 1893, c. 31, § 10,
inserting "or territory" of Canada) ; ib. §§ 22, 23 (like N. Sc. Rev. St. 1900, c. 163, §§ 21,
22, substituting as certifier the clerk of the Territorial court, and the word "probated" for
"recorded," and requiring only five days' notice).
United States: Ala.: 1910, Pearce v. Fisher, 170 Ala. 456, 54 So. 164 (bankrupt court
record, certified by clerk of court under seal of court, admitted).
Ark. : 1904, Ramsey v. Flowers, 72 Ark. 316, 80 S. W. 147 (certified transcript of proceed-
ings before a commissioner for U. S. Courts, admitted).
Colo. : St. 1903, c. 181, § 172 (copies of probate "records and entries or of any papers or
exhibits on file in such court," certified by the clerk or judge under seal of the court, are
admissible).
St. 1903, c. 181, § 159 ("authenticated copies" of probate inventories, etc., are admissible).
1909, Henry Investment Co. v. Semonian, 45 Colo. 260, 100 Pac. 425 (copy of Nebraska
judgment lacking both attestation and certificate, excluded).
D. C. : 1906, Scott v. Herrell, 27 D. C. App. 395, 398 (certified copy of a will, admitted under
Code 1901, § 1071).
Fla. : 1906, Mansfield v. Johnson, 51 Fla. 239, 40 So. 196 (execution returned and on file,
proved by the clerk's certified copy) ; 1906, Thomas v. Williamson, 51 Fla. 332, 40 So. 831
(statutory rule for certified copies of probated wills, construed).
Ga.: 1905, Conrad v. Kennedy, 123 Ga. 242, 51 S. E. 299 (under Code § 5237, a certified
copy of a will probate in another Stf^te must be attested as in due form by the judge, etc.) ;
1906, Patterson v. Drake, 126 Ga. 478, 55 S. E. 175 (Code 1895, § 5214, supra, applied) ;
1907, Sellers v. Page, 127 Ga. 633, 56 S. E. 1011 (transcript of a court of ordinary; Code
§ 4250 applied). St. 1908, No. 566, p. 85, Aug. 17 (foreign probated wills, proved by ex-
emphfication of the probate record "certified according to the Act of Congress").
Haw. St. 1911, No. 64, p. 68, Apr. 6 (record of a case in office of clerk of a Supreme Court
may be proved by clerk's certified copy).
la. : 1904, Tomlin v. Woods, 125 la. 367, 101 N. W. 135 (Code § 4646 applied to a California
justice's record).
La.: 1904, State v. Allen, 113 La. 705, 37 So. 614 (bigamy; certified copy of an offi-
cial Indiana marriage certificate, recorded in a circuit court held properly authenti-
cated).
Mich. : St. 1909, No. 191, p. 356, June 1 (amending Comp. St. 1897, §§ 10144, 10145, re-
garding authentication of affidavits and judicial records without the State). 1911, General
Conference Ass'n v. Michigan S. & B. Ass'n, 166 Mich. 504, 132 N. W. 94 (certified copy of
a Canadian will probate, admitted).
Miss. : 1904, Wise v. Kerr Thread Co., 84 Miss. 200, 36 So. 244 (certified copy of a justice's
judgment, admitted, under St. 1866, c. 101, Code 1892, § 2413).
Mo. : 1906, Stevens «. Oliver, 200 Mo. 492, 98 S. W. 492 (certified copy of a recorded probate
of an Ohio will, admitted under Rev. St. 1899, § 4635, supra).
Nebr.:' 1903, Martin «. Martin, 70 Nebr. 207, 97 N. W. 289 (statute applied to admit a
certified copy of a probate of a will in Pennsylvania) ; 1906, Gordon Bros. v. Wageman, 77
Nebr. 185, 108 N. W. 1067 (transcript of Missiouri justice's judgment, held properly authen-
ticated under the above statute). 1908, Koltermann v. Chilvers, 82 Nebr. 216, 117 N. W.
405 (a will-probate, admitted under the curative provisions of Cobbey's Annot. St. 1903,
§§4817,5008,5025,5026).
N. J. St. 1909, c. 153, p. 228 (certified copy, under seal of court, of "any pleading . . .
or of judgments, orders, decrees or writs of any kind," in the courts of the State, to be admis-
381
§ 1681 HEARSAY RULE
[Note 12 — coTiiirmed]
sible). 1912, McDevitt v. Deacon, 83 M. J. L. 712, 85 Atl. 186 (certified copy of a will ad-
mitted, under Gen. St. Orphans Courts, § 20, supra).
N. Y. St. 1909, e. 66, § 1, p. 85 (re-enacting Rev. St." pt. IV, c. 2, tit. 6, § 10, as C. Cr. P.
§ 482a ; clerk's certified copy of minute of conviction, with indictment, to be evidence where
no record of judgment was signed and filed). St. 1909, c. 578, p. 1416 (amending C. C. P.
§ 2629 in an unspecified detail). St. 1914, c. 443, §§ 2608, 2621-2623 (replacing C. C. P.
§§ 2629-2632 ; mode of proving probated will by copy, prescribed) ; § 2630 (ancillary letters
upon foreign grant of administration ; kind of copy prescribed) ; § 2719 (certified copy of
settlement of account, recorded in surrogate's court, to be evidence of contents and execu-
tion).
N. C: Revision 1905, §§ 1616, 1618, 1619, 3133, 3130 (like Code 1883, §§ 1342, 1343, 1344,
2156, 2157); Rev. 1905, §§ 1603, 1607, 1608 (like Code §§ 2176, 2181, 2182); Rev.
1905, § 1609, Code 1883, § 2183 (copy, not certified, of a probated will destroyed during
the war, admissible on certain conditions). i
N. D. : 1907, Strecker v. Railson, 16 N. D. 68, 111 N. W. 612 (justice of the peace's record
in another State, held not to be within the statutes).
S. D. St. 1911, c. 148, p. 182 (C. C. P. 1903, § 529, amended in unspecified particu-
lars).
Term. St. 1909, c. 87, p. 252 (certified copiesof foreign wills probated in the county coiHt,
admissible.)
U. S.: 1909, Pineland Club v. Robert, 4th C. C. A., 170 Fed. 341 (an exemplification of a
will under S. C. Civ. Code 1892, § 2494, must be under seal of the Court and hand of the
judge).
Vt. : St. 1900, No. 36 (amending Stats. 1894, § 2367, supra, as to foreign wills) ; St. 1904,
No. 67 (similar).
Va. St. 1908, c. 338, p. 598 (amending Code 1887, § ,3334). St. 1910, c. 334, p. 532 (any
"paper forming part of the record of a proceeding in bankruptcy " in a Federal court may
be evidenced by clerk of court's certified copy recorded in any court of record of the State,
or by his certified copy thereof).
Wis. St. 1911, c. 180, p. 177 (amending Stats. § 4145, by adding "or in the manner provided
by Acts of Congress for the authentication of judicial proceedings," and changing "annexed"
to "affixed").
Wyo. St. 1911, c. 87, p. 133 (making admissible certified copies of."duly certified copies" of
"proceeding in foreign courts mentioned and referred to in §§ 3707, 3708, and 3711,"
Comp. St. 1910, "whenrecordedin the office of the county clerk of the county where the
land involved is situated").
Compare also the rule against merely certifying to the effect or non-existence of the record
(ante, § 1678), and the rule requiring the copy to include the whole of the record (post, §§ 1664,
2109, 2110).
[Note 14, par. 1; add:]
1904, Tomlin v. Woods, 125 la. 367, 101 N. W. 135.
[Note 14, par. 2, 1. 4; add:]
or though the local statute provides nothing : compare the cases as to records of foreign deeds,
cited ante, § 1652^ n. 4, § 1680, n. 3.
[Note 16, par. 1; add:]
1905, Chapman v. Chapman, 74 Nebr. 388, 104 N. W. 880.
1907, Strecker v. Railson, 16 N. D. 68, 111 N. W. 612 (justice of the peace).
1913, Ganow v. Ashton, 32 S. D. 458, 143 N. W. 383 (for a Federal District Court within the
State, the judge's certificate, certifying to the clerk's, is not necessary).
382
EXCEPTIONS : OFFICIAL STATEMENTS § 1684
[Note 16, par. 2 ; add, five lines from the end :]
The following cases seem to countenance this error : 1908, Britton v. Chamberlain, 234
111. 246, 84 N. E. 895 (decree of Supreme Court of New York ; the clerk certified under
court seal the correctness of the copy, the justice J. S. L. certified that the attestation was in
dueformandtheclerkcertifiedthat J. S.L. was justice; "we think the decree was properlj''
certified").
1908, Light V. Reed, 234 111. 626, 85 N. E. 282 (the opinion refers to such an erroneous triple
certificate of a judicial record as being "in strict accord with the act of Congress").
[Note 16, par. 2 ; at the end, add a new par. :]
Itis therefore not quite correct to say (as in Ganow v. Ashton, 32 S. D. 458, 143 N. W.
383, following certain annotators) that in U. S. Rev. St. 1878, § 905, the reason for requiring
a judge's certificate to the clerk's certificate is that "the [local] Court is not presumed to
know or to take judicial notice of the laws in force or what is 'due form' in another State
or foreign jxu-isdiction." The reason is (ante, § 1679) that the local court (where the document
is offered) does not know, and the foreign judge does know, (1) whether his clerk was
genuinely the signer and sealer, (2) whether J. S. was the clerk, and (3) whether the clerk
was by law the custodian ; but of these three things, only (3) is a point of law. The "due
form" of the Federal statute is merely a technical phrase covering those three elements;
there is no peculiarity of "form" involved in the certificate; (1) and (2) are pure fact, and
(3) is pure law.
§ 1683. Quasi- Official Copies Certified by Private Persons.
[Note 3; add:]
England: 1911, Albutt's and Screen's Case, 6 Cr. App. 55 (under St. 1879, 42 Vict. c. 11,
§ 4, a copy of a banker's book need not be by an ofiicer of the bank ; here by a chartered
accountant).
Canada: Ont. St. 1909, c. 43, § 26 aike R. S. 1897, c. 73, § 26). Sask. St. 1906, c. 30, § 194
(regulation, etc., of a railway company, provable by copy certified "by the president,
secretary, or other executive ofiicer," under company seal).
Yukon St. 1904, c. 5, § 11 (like Dom. St. 1893, c. 31, § 12; quoted ante, § 1680).
U. S. : Nebr. : St. 1905, c. 157 (documents in the custody of the Nebraska State Historical
Society are provable by certified copy of its secretary or curator "under seal and oath").
Compare also the cases cited ante, §, 1674, notes 10, 11 (certificates by private persons).
§ 1684. Officially Printed Copies.
[Note 15; add:]
England : St. 1907, 8 Edw. VII, c. 16, § 1, Evidence Colonial Statutes Act (Acts, etc., of the
Legislature of any British possession, and orders, etc., made thereunder, provable by copy
"purporting to be printed by the Government printer"). St. 1908, 8 Edw. VII, c. 67, § 88
(reform school certificate; London Gazette to be evidence).
Canada : Dominion: St. 1903, 3 Edw. VII, c. 61, § 11 ("copies of the said Revised Statutes
[of 190-, authorized by this act to be prepared], purporting to be printed by the King's
printer, from the amended roll so deposited, shall be evidence of the said Revised Statutes").
St. 1907, 6-7 Edw. VII, c. 43, § 11 (Revised Statutes 1906; copies in French or English
"purporting to be printed by the King's printer, shall be evidence of the said Revised
Statutes and of their contents").
AlbeHa : St. 1906, c. 3, § 7, par. 54 (a legislative act, public or private, is provable by a copy
"printed by authority of law," and every copy so purporting shall be deemed prima facie
to be so printed) ; ib. par. 55 (the King's printer's copy of a regulation or order in council is
admissible). St. 1910, 2d sess., Evidence Act. c. 3, § 25 ("Copies of statutes, ofiicial gazettes,
ordinances, regulations, proclamations, journals, orders, appointments to ofiBce, notices
383
§ 1684 HEARSAY RULE ••
[Note 15 -^ continued]
thereof, and other pubHc documents, purporting to be printed by or under the authority
of the Parliament of Great Britain and Ireland or of the Imperial Government" or any
Government or legislature of the British dominions, "shall be admitted in evidence to prove
the contents thereof") ; ib. § 26 (substantially like Ont. R. S. 1897, c. 73, §§ 22, 23) ; ib.
§ 28 (like Ont. R. S. 1897, c. 73, § 25, including the Alberta Gazette and "the official gazette
of any province or territory in Canada").
Br. C. St. 1908, 8 Edw. VII, c. 2,' § 51 (registration of dental practitioner, provable by list
printed in B. C. Gazette).
St. 1910, 10 Edw. VII, c. 7, § 163 (Companies Act; like Rev. St. c. 44, § 135).
N. W. Terr.: Can. Rev. St. 1886, c. 50, § 111 (cited supra, under Dcminion).
Ont. St. 1909, c. 43, § 22 (like R. S. 1897, c. 73, § 21, but enlarging it to include Great Britain
and Ireland, the Imperial Government and any possession, etc. within the King's dominions) ;
ib. § 23 (like R. S. 1897, c. 73, §§ 22, 23) ; ib. § 25 (like ib. § 25).
Sask. St. 1907, c. 12, Evidence Act, § 3 (British or Canadian statutes and ordinances, prova-
ble by copy "printed or purporting to be printed by the Queen's or King's or government
printer) ; ib. § 4 (like Can. St. 1893, c. 31, § 11, adding the Government printer for Sas-
katchewan) ; ib. § 5 (Uke Can. St. 1893, c. 31, § 8) ; ib. § 6 (like Can. St. 1893, c. 31, § 9,
adding the government printer for Saskatchewan) ; ib. § 9 (like Ont. R. S. 1897, c. 73, § 25,
substituting the Saskatchewan Gazette). St. 1908, c. 38, § 30 (adding a sub-section (2)
to the Evidence Act 1907, c. 12, § 9; "publications in the Saskatchewan Gazette" and all
documents "printed or purporting to be printed by the government printer " shall be deemed
to be "authentic copies of the originals" and admissible "without proof as the originals
might be").
Yukon: Consol. Ord. 1902, c. 1, § 8, par. 54 (Commissioner's regulation or order, provable
by printed copy in the Yukon Official Gazette) ; ib. par. 53 (a printed copy of an ordinance,
public or private, purporting to be printed by authority of law, is admissible) ; c. 57, § 74
(notice of joint-stock incorporation-patent in Yukon Official Gazette, admissible) ; c. 76,
§ 102 (provision for a printed copy of liquor regulations). St. 1904, c. 5, § 3 (statutes of the
Imperial or Dominion Parliament, or of a province, etc., of Canada, or ordinances of this
Territory or another of Canada, are provable by copy purporting to be printed and pub-
lished by the King's printer or respective Government printer) ; ib. § 4 (Imperial proclama-
tions, etc. ; like Dom. St. 1893, c. 31, § 11, adding "Yukon Territory" under cl. c) ; ib. § 5
(Dominion proclamations, etc. ; like Dom. St. 1893, c. 31, § 8) ; ib. § 6 (proclamation, etc.,
of a Lieutenant-Governor, etc., or of the Yukon Commissioner ; like Dom. St. 1893, c. 31,
§ 9) ; ib. § 10 (like Dom. St. 1893, c. 31, § 16, adding the Yukon Gazette).
United States : Colo. St. 1907, c. 37, p. 93, Apr. 9, § 4 ("Revised Statutes of Colorado
1908," under Secretary of State's certificate, to be evidence). St. 1911, c. 109, p. 406, Apr.
15 ("Mills' Annotated Statutes of the State of Colorado, revised edition edited and anno-
tated by John H. Gabriel, Esq." 1912, receivable in evidence).
Ga. : 1907, Missouri S. L. Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S. E. 93 (a purporting
official printed copy of Missouri insurance laws, received).
III. : 1906, McCraney v. Glos, 222 111. 628, 78 N. E. 921 (printed book of Iowa statutes,
■with the title-page reading, "published by authority of the State," admitted under Rev. St.
1874, c. 51, § 10).
1906, Chicago & A. R. Co. v. Wilson, 225 111. 50, 80 N. E. 56 (under Rev. St. c. 24, § 65,
supra, the printed copy is of course not conclusive). 1907, Illinois C. R. Co. v. Warriner,
229 III. 91, 82 N. E. 246 (village ordinance, purporting to be published by authority, al-
though the printed certificate on it contained an inconsistent date).
Ind. : 1909, State v. Wheeler, 172 Ind. 578, 89 N. E. 1 (official book of annual Apts is
prima facie evidence).
la. : 1904, Summitt v. U. S. Life Ins. Co., 123 la. 681, 99 N. W. 563 (N. Y. Session Laws,
held to "purport to have been published, etc.," under Code § 4651).
Kan. : St. 1897, c. 136, § 4 (Webb's edition, 1897, of the general statutes of Kansas, shall be
384
EXCEPTIONS : OFFICIAL STATEMENTS § 1684
[Note 15 — continued]
prima facie evidence of the statutes, etc., when approved in a certain tenor by the certificates
of the Supreme Court and the attorney-general). 1906, State v. Carter, 74 Kan. 156, 86
Pac. 138 (the foregoing edition held not to be adequately approved as required, and there-
fore to be no more "than a private compilation, and are not evenprima facie evidence of the
statute law of the State").
Ky. : 1906, Graziani ii. Burton, — Ky. — , 97 S. W. 800 (copy of the Ohio law, proved
by the Secretary of State to have been received by him, etc., admitted under Stats.
§ 1642).
Md. St. 1912, c. 21, p. 58, Mar. 13 (Bagby's Annotated Code of the Public Civil Laws of
Maryland, to be evidence of the Code and Statutes to 1912 inclusive, save such as "relate
exclusively to Crimes and Punishments").
Minn. : 1906, Clagett v. Duluth, 143 Fed. 824, C. C. A. (Young's and Wenzel's official
compilation of Minnesota statutes, held not conclusive).
Mo.: St. 1905, Mar. 10, p. 208 (adding § 41646 to Rev. St. 1899, making admissible
the Secretary of State's printed compilation of amendments to the Constitution since
1898).
Nebr. St. 1913, c. 241, p. 753, § 14 ("Revised Statutes of Nebraska for 1913," with Secretary
of State's certificate, to be evidence of the laws "without further authentication," but "the
existing editions" of the Compiled Statutes and Cobbey's Annotated Statutes, to be evidence
of "the law as therein contained").
N. J. : St. 1905, c. 199 (amending St. 1899, Mar. 21, and making admissible in actions for
penalties the printed copy of city ordinances, etc., published by authority of the common
council).
N. Y. : St. 1909, c. 65, p. 22, Feb. 17 (adding § 941a to the C. C. P. ; compilation of colonial
statutes pursuant to St. 1891, c. 125, to be evidence of the original, if it purports to be a copy
from the original). St. 1913, c. 597, p. 1609, § 1 (amending St. 1910, c. 480, § 7; printed
proceedings of public service commissions, admissible).
N. C. : Rev. 1905, §§ 1592, 1593, 1594 (like Code 1883, §§ 1338, 1339, 1340). 1906, State v.
Southern R. Co., 141 N. C. 846, 54 S. E. 294 (printed copy of Federal department of agricul-
ture's regulations, not received on the facts).
Or. : 1909, State v. McDonald, 55 Or. 419, 104 Pac. 967 (New Zealand statute book, ad-
mitted).
S. C. St. 1911, No. 88, p. 146 (printed copies of statutes, cases, etc., "by any other sover-
eignty," etc., "purporting to be published under the authority thereof, or purporting to be
an authentic publication by a reputable publisher," to be admissible).
U. S. : Rev. St. 1878, § 892 (printed copies of patent-office records ; quoted ante, § 1680, n.
1). St. 1906, June 29, § 5, c. 3591, Stat. L. vol. 34, p. 589 ("authorized publications" of the
reports and decisions of the Interatate Commerce Conunission, in the form provided by it,
are to be "competent evidence" of the reports and decisions). 1904, Drewson v. Hartje
P. M. Co., 131 Fed. 734, 738, 65 C. C. A. 548 (patent-office printed copy of a patent, held
sufficient to show the date of application, on the facts). 1914, Stewart ». U. S., 9th C. C. A.,
211 Fed. 41 (U.S. General Land Office map, recited to be issued by authority of the Secre-
tary of the Interior, admitted).
Utah: 1912, Stuart v. Peterson, — Utah — , 125 Pac. 395 (Mills' Annotated Statutes of
Colorado admittejl)'
Vt.: St. 1912, No. 259, p. 334 (officially printed volume of State charters, etc. to be
evidence).
Va. : St. 1906, c. 20 (Pollard's edition of the authorized Code of Virginia of 1904, to be
evidence).
[Note 15, p. 2160; aM, at the end of par. (1) :]
(6) A certified copy under seal by the Secretary of State may be usable on the principle of
§ 1680, ante.
385
§ 1691 " HEARSAY RULE
§ 1691. Learned Treatises; General Principle, etc.
[Text, p. 2173, 1. 2 from the end of the section ; add a new note 4 :]
* An example of the good sense and .utility of such a rule, if it could be adopted, may be
seen in Bailey v. Kreutzmann, 141 Cal. 619, 75 Pac. 104 (1904).
§ 1693. Jurisdictions in which the Exception is Recognized.
[Note 1, par. 1 ; add:]
1906, Birmingham R. L. & P. Co. v. Moore, 148 Ala. 115, 42 So. 1024 (two books on surgery,,
admitted on a question concerning appendicitis).
[Note 3; add:]
1888, People v. Goldenson, 76 Cal. 348, 19 Pac. 170.
1891, Lilley v. Parkinson, 91 Cal. 665, 27 Pac. 1091.
1904, Bailey v. Kreutzmann, 141 Cal. 519, 75 Pac. 104.
1906, State v. Wilhite, 132 la. 226, 109 N. W. 730 (a standard medical dictionary is admis-
sible for definitions, as distinguished from ''the symptoms and cure of disease"). 1909,
Bruggemaa v. Illinois C. R. Co., 147 la. 187, 123 N. W. 1007 (books on air brakes, to show
the time required for stopping, excluded).
§ 1696. Jurisdictions Rejecting a General Exception.
[Note 1; add:]
1912, Denver City T. Co. ». Gawley, 23 Colo. App. 332, 129 Pac. 258.
§ 1697. Partial Recognition; (1) Legal Treatises.
[Note 2, under Accord, add:]
1904, Banco de Sonora d. Bankers' M. C. Co., 124 la. 676, 100 N. W. 532 (similar to the
prior ruling in this case).
§ 1698. Same : (2) Life Tables, Almanacs, etc.
[Note 1, par. 1 ; add:]
1907, Calvert v. Springfield Electric L. & P. Co., 231 111. 290, 83 N. E. 185 (Wigglesworth
Tables). 1909, Winn «. Cleveland C. C. & St. L. R. Co., 239 111. 132, 87 N. E. 954 (Wiggles-
worth Tables admitted). 1911, Marshall v. Marshall, 252 111. 568, 96 N. E. 907 (Carlisle
and other tables).
1906, Pittsburgh C. C. & St. L. R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033 (Carlisle
Tables admitted).
1904, Knott V. Peterson, 125 la. 404, 101 N. W. 173. 1907, Clark v. Van Vleck, 135 la.
194, 112 N. W. 648 (tables published in the Code Supplement of 1902, admitted).
1909, Peterson v. Brackey, 143 la. 75, 119 N. W. 967.
1913, Scott V. Chicago C. R. S. & P. R. Co., — la. — , 141 N. W. 1066.
1905, Illinois C. R. Co. v. Hauchins, 121 Ky. 526, 89 S. W. 530 (American Mortality
Table, admitted).
1907, Banks v. Braman, 195, Mass. 97, 80 N. E. 799 (a certain insurance table, not shown
Ho be standard or recognized, not admitted).
1907, Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45.
1905, Horst v. Lewis, 71 Nebr. 366, 103 N. W. 460.
N. C. Rev. 1905, § 1626 (like Code, § 1362).
1904, Reynolds v. Narragansett E. L. Co., 26 R. I. 457,59 Atl. 393 (standard annuity tables,
admitted).
386
EXCEPTIONS : LEARNED TREATISES, ETC. § 170O
[Note 1 — cofrvtimwd]
1905, Hyland «. Southern B. T. & T. Co., 70 S. C. 315, 49 S. E. 879 (statute appKed).
1912, Richardson v. Spokane, 67 Wash. 621, 122 Pac. 330.
[Nalei; add:]
1911, Lynes v. Northern Pacific R. Co., 43 Mont. 317, 117 P^c. 81 (mathematical tables
showing the respective distances at which trains could be stopped by air-brakes, held admis-
sible).
§ 1699. Same : (3) Dictionaries and Histories.
[Note 2; add:]
1913, Merriam Co. v. Syndicate Pub. Co., 2d C. C. A., 207 Fed. 515 (a dictionary — author's
prefatory recitaLof the sources used by him, admitted; sensible opinion by Hand, D. J.,
approved in the C. C. A.).
[NoU^; add:]
1909, In re Najour, C. C. N. D. Ga., 174 Fed. 735 (Keane's The World's People, quoted
to prove the classification of world races, in a naturalization case).
§ 1700. Same : (4) Sundry Instances, etc.
[iV^ofel, 1. 9; add:]
Contra : cases cited ante, § 1693, n. 3, § 1696.
[Note 2; add:]
1913, Travelers' Ins. Co. v. Davies, 152 Ky. 600, 153 S. W. 956 (following Williams v.
Nally).
1913, Eckels & S. I. M. Co. v. Cornell E. Co., 119 Md. 107, 86 Atl. 38 (asking an expert
whether he would adhere to his opinion if a writer in a certain article stated the contrary,
but not showing the article, though it was at hand ; held that counsel, not haVing objected
to the question, could not inspect the article ; clearly unsound ; the method of the cross-
examiner was capable of being a mere lying insinuation that the article did contradict the
expert ; and the only fair course was to compel counsel to read it or to let the opposite coun-
sel inspect it to discover the trick if there was one).
1909, MacDonald v. Metropolitan St. R. Co., 219 Mo. 468, 118 S. W. 78 (the cross-examiner
may frame questions in the language of books held in his hand, and ask the witness whether
he agrees to that view).
[Note 4:; add:]
1912, Denver City T. Co. v. Gawley, 23 Colo. App. 332, 129 Pac. 258 (a physician may not
on cross-examination be asked if he agrees with the view of a certain other not cited by him).
1907, Chicago Union T. Co. v. Ertrachter, 228 111. 114, 81 N. E. 816 (Bloomington v. Schrock
followed).
1904, Cronk v. Wabash R. Co., 123 la. 349, 98 N. W. 884. 1905, State v. Thompson, 127
la. 440, 103 N. W. 377. 1907, State v. Blackburn, — la. — , 110 N. W. 275 (cross-examina-
tion to books stated by the witness to be standard authorities, allowed). 1908, State v.
Blackburn, 136 la. 743, 114 N. W. 531 (a cross-examination of a medical Aian held im-
proper, in which the question continually assumed that universal professional, opinion
was contrary to his).
1906, Harper v. Weikel, — Ky. — , 89 S. W. 1125.
1911, Com. V. Jordan, 207 Mass. 259, 93 N. E. 809 (whether he would change his opinion
if Professor B. said the contrary, not allowed). 1911, Com. Phelps, 210 Mass. 109, 96
387
I 1700 HEARSAY RULE
[Note 4 — continued]
N. E. 69 (reading from another expert to contradict the expert testifying, excluded on mixed
grounds). 1912, Allen v. Boston Elevated R. Co., 212 Mass. 191, 98 N. E. 618 (similar).
1913, In re Dubois, 164 Mich. 8, 128 N. W. 1092 (like Hall v. Murdock, supra).
1904, MitcheU v. Leech, 69 S. C. 413, 48 S. E. 290.
1903, Stone v'. Seattle, 33 Wash. 644, 74 Pac. 808.
[Note 7; add:]
1904, Quattlebaum v. State, 119 Ga. 433, 46 S. E. 677.
[Note 8; add:]
1905, Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. 358 (cyclopedias quoted on the experi-
ence of foreign countries as to vaccination against smallpox).
§ 1702. Reports of Judicial Decisions.
[Note 1, lines 2 and 3 ; read, instead :]
it is now known that the Year Books were not official, so that this is perhaps a precedent.
[Note 2; add:]
N. C. Rev. 1905, § 1594 (like Code, § 1338).
§ 1704. Standard Price-Lists and Market Reports.
[Note 1; add:]
1905, Kentucky Ref. Co. v. Conner, 145 Ala. 664, 39 So. 728 (certain letters held not to
be within the statute).
1908, Mount Vernon B. Co. v. Teschner, 108 Md. 158, 69 Atl. 702 (newspaper accepted by
the trade as trustworthy in stating market prices, admissible, without any showing of the
publisher's method of obtaining the information ; careful and liberal opinion by Boyd, C. J.).
1906, Tri-State Milling Co. v. Breisch, 145 Mich. 232, 108 N. W. 657 (Sisson v. R. Co.,
followed; market quotations in a Detroit daily newspaper, received).
1905, Fountain v. Wabash R. Co., 114 Mo. App. 676, 90 S. W. 393 (trade journals, not ad-
mitted without showing that reUable sources were used in their reports).
1905, Chicago, B. & Q. R. Co. v. Todd, 74 Nebr. 712, 105 N. W. 83 (Sisson v. R. Co., supra,
followed ; Daily Drovers' Journal-Stockman admitted to show sales of sheep on certain
days).
1907, Moseley v. Johnson, 144 N. C. 257, 274, 56 S. E. 922 (value of Georgia corporate
securities; the market reports of a daily newspaper in Georgia, admitted).
1913, Peters v. McPhadden, 75 Wash. 525, 135 Pac. 26 (newspaper advertisements of stock
prices ofiFered, here excluded).
§ 1705. Abstracts of Title.
[Note 1; add:]
But not, apparently, in this country : 1906, Einstein v. HoUaday K. L. & L.^^Co, 118 Mo.
App. 184, 94 S. W. 296 (lost deeds and burnt records ; set of abstracts made partly by S.,
and partly by K., but verified by S. only, excluded).
[Note 2; add:]
Canada : Alta. St. 1910, 2d Sess., Evidence Act, c. 3, § 48 ("an abstract of title or a
general certificate under seal," by a land-title registrar, "shall be prima facie evidence of
the contents thereof ").
United States : Col. St. 1906, Spec. Sess., c. 52, June 16, C. C. P. § 1855a (abstracts
of title for lost or destroyed records, when made "in the ordinary course of business prior
388
EXCEPTIONS : COMMERCIAL REPORTS, ETC. § 1706
[Note 2 — eontimied]
to such loss or destruction," admissible "without further proof by the person who actually
made the copies" etc., on notice to opponent and opportunity to inspect).
III.: St. 1903, pp. 121, 122 (amending St. 1897, May 21, §§ 7, 18, being Hurd's Rev. St.
1903, c. 30, § 61, concerning title-registration, so as to permit the use of abstracts of title).
1903, Glos V. Cessna, 207 111. 69, 69 N. E. 634 (abstract rejected because it was not on file
in the recorder's office and the loss of originals was not proved). 1904, Glos v. Paterson,
,209 111. 448, 70 N. E. 911 (certain abstracts held sufficiently shown to be within the de-
scription of the statute). 1904, Glos v. Talcott, 213 111. 81, 72 N. E. 707 (certain abstracts
held improperly admitted without proof of loss of the original, preparation in the course
of business, etc.). 1906, Glos v. Holberg, 220 111. 167, 77 N. E. 80 (abstract excluded, for
lack of statutory compliance). 1906, Messenger v. Messenger, 223 111. 282, 79 N. E. 27
(the above statute of 1903 held not to have been lawfully adopted in Cook Co., and certain
abstracts therefore rejected). 1907, Glos v. Wheeler, 229 111. 272, 82 N. E. 234 (abstract
rejected because the original deed or record was not accounted for). 1909, McMahon v.
Rowley, 238 111. 31, 87 N. E. 66 (certain abstracts admitted). 1911, Culver v. Waters,
248 111. 163, 93 N. E. 747 (abstracts must be "made by the abstracters" in the ordinary
course of business, nrit "ordered by the owner" in the ordinary course of his business).
1911, Hammond v. Glos, 250 111. 32, 95 N. E. 39 (copy of an uncertified copy not admitted).
1911, Caswell v. Glos, 251 111. 505, 96 N. E. 251 (abstracts admitted, the witness' personal
knowledge of their mode of compilation being sufficient on the facts).
Minn. St. 1905, c. 193, § 1 (on affidavit that an instrument or court records affecting a
landed interest "are lost or destroyed and not within the power of such party to produce,"
and that the record of it is "destroyed by fire or otherwise," the Court may receive "any
abstract of title to such lands made in the ordinary course of business before such loss or
destruction," and also "any copy, extract, or minutes from such destroyed records or from
the original thereof, which were, at the date of such destruction or loss, in the possession
of any person then engaged in the business of making abstracts of title for others for hire") ;
ib. § 2 (a sworn copy of any such writing, made by the possessor, is receivable, provided
reasonable notice is given to the opponent for verifying its correctness).
Mo. St. 1905, Mkr. 23 and St. 1905, Apr. 15, pp. 148, 150 (certain abstracts of title to lands
in Taney and Pulaski counties, made admissible). St. 1907, p. 271, Feb. 27, § 1 (where
records affecting real estate are destroyed, etc., circuit judges may certify that abstracts
etc. "were fairly made before such loss" etc. "in the ordinary and usual course of business,"
and that they "tend to show a connected chain of title," and thereupon such abstracts
etc., or "authenticated copies" are to be admissible) ; § 3 (any abstracts, etc. "which are
fair upon their face" and "made by any person" etc. "in the usual and ordinary course
of business prior to the loss" etc., are admissible, upon proof that the original deeds etc.
"are lost, destroyed, or so injured as to be illegible or that the said originals are not within
the power of the party to produce," and that the records are lost, etc.).
A''. D. St. 1907, c. 2, p. 2 (lost or destroyed records ; "the abstract of a regular bonded ab-
stractor or abstractors" of the county, to be admissible).
Okl. St. 1909, c. 33, p 516, Art. I, §§ 12, 13 (similar to 111. Rev. St. c. 116).
§ 1706. Sundry Commercial and Professional Registers.
[Notel; add:]
1907, Warrick v. Reinhardt, 136 la. 27, 111 N. W. 983 (killing of a thoroughbred sow; a
certificate of registry in the Iowa Breeders' Association, admitted).
Ky. St. 1904, c. 127 (Hvery-keeper's register; cited more fully ante, § 1639, n. 2). 1904,
Marks v. Hardy's Adm'r,117 Ky. 663,78 S. W. 864, 1105 (reports of mercantile agency,
not admitted as reputation to show a partnership).
Compare the cases cited ante, § 1621, n. 5 (reputation of an animal's character).
389
§ 1708 HEARSAY RULE
§ 1708. Affidavits ; Inadmissible at Common Law.
[Text, p. 2191, 1. 5, after "cross-examination " ; add a new note lo :]
1° 1908, Fender v. Ramsey, 131 Ga. 440, 62 S. E. 627.
§ 1709. Same : Exceptions at Common Law.
[Note 4:; cdd:]
For the authorities on the rule for habeas corpus proceedings, see a careful opinion by Lump-
kin, J., in Robertson v. Heath (1909), 132 Ga. 310, 64 S. E. 73.
§ 1710. Affidavits ; Exceptions created by Statute.
[Note 6; add:]
England : for some English statutes, see ante, § 1380, n. 3.
Canada : Newf. St. 1904, c. 3, Rules of Court 33, par. 1, par. 31, Rule 34, par. 1, par. 24
(similar; quoted ante, § 1411).
Ont. St. 1910, 10 Edw. VII, c. 32, § 119 (division courts; judge may receive aflSdavit of a
person out of the county, but may require interrogatories).
United States : la. St. 1913, c. 272, p. 288, Apr. 16, § 5 (curing defective conveyances;
affidavits already filed explaining any defects in title prior to Jan. 1, 1900, to be evidence).
Mass. St. 1913, c. 716, § 3 (Supreriie Court on appellate proceedings- may take supplemen-
tary evidence by affidavit).
Nebr. St. 1913, c. 75, p. 218 (recorded affidavits "explaining or correcting any apparent
defect in the chain of title to any real estate," admissible).
Wis. St. 1909, c. 302, Stats. § 2238o (affidavits admissible, when recorded, to evidence
identity of parties to a conveyance).
§ 1712. Voter's Declarations as to Qualifications, etc.
[Note 3; add:]
1905, State v. Rosenthal, 123 Wis. 442, 102 N. W. 49 (State v. Olin, supra, followed).
§ 1715. Circumstantial Evidence and Res Gestae Rule, distinguished.
[Text, p. 2207, 1. 1 ; after "Exception," add a new note 3a :]
"" 1901, Baldwin, J., in Vivian's Appeal, 74 Conn. 257, 261, 50 Atl. 797: "A feeling
is a fact; and an ultimate fact. If one says that he loves another, he expresses a sen-
timent existing at the time when he speaks."
§ 1719. Statements of Pain or Suffering ; to a Physician or Layman.
[Note 8; add:]
III. : 1904, Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28 (Carr case approved).
1909, Fuhry v. Chicago City R. Co., 239 111. 548, 88 N. E. 221 (a physician called to treat
the injury testified to the patient's subjective symptoms among others ; the opinion cites
the Donworth and Greinke cases {post, § 1721, n. 1) for the rule that "a physician who has not
treated the injured person, but has made an examination to enable him to testify on a trial
as to his condition, must base his opinion on objective and not subjective conditions," but then
proceedstosay that "the testimony as to the pressure of her hands . . . was incompetent ; "
if such loose judicial opinions continue to be written, a premium is offered to gamble on a
decision). 1909, Schmidt v. Chicago City R. Co., 239 111. 494, 88 N. E. 275 (physician's
testimony to a contraction of the muscles which might have been voluntary but was not,
390
EXCEPTIONS : STATEMENTS OF MENTAL CONDITION, ETC. § 1721
[Note 8 — continued]
admitted; also to a limp). 1910, Louth v. Chicago M. T. Co., 244 111. 244, 91 N.E. 341
(see citation post, § 1721, n. 1).
Kan. : 1908, Federal Betterment Co. v. Reeves, 77 Kan. Ill, 93 Pac. 627, semble.
Ky.: 1905, Louisville &N. R. Co. v. Smith, — Ky. —,84 S. W. 755; 1913, Louisville &
N. R. Co. V. Sealf, 155 Ky..273, 159 S. W. 804.
S. D. : 1905, Klingaman v. Fish & H. Co., 19 S. D. 139, 102 N. W. 601 (here the Court, while
adopting the inferior rule, inexcusably cites the Massachusetts cases as if they supported it).
[Text: p. 2212, 1. 1 ; before "repudiated," insert:]
or impliedly.
[Note^; add:]
Ala. : 1903, Montgomery St. R. Co. v. Shanks, 139 Ala. 489, 37 So. 166 (complaints and
crying, admitted). 1905, Kansas City M. & B. R. Co. v. Butler, 143 Ala. 262, 38 So. 1024.
1905, Kansas City M. & B. R. Co. v. Matthews, 142 Ala. 298, 39 So. 207. 1905, Birming-
ham R. L. & P. Co. V. Rutledge, 142 Ala. 195, 39 So. 338.
7a. ; 1904, Buce v. Eldon, 122 la. 92, 97, N. W. 989. 1904, Battis v. Chicago R. I. & P. R.
Co., 124 la. 623, 100 N. W. 543 (like Keyes v. Cedar Falls, supra). 1905, Fishburn v. Bur-
lington & N. W. R. Co., 127 la. 483, 103 N. W. 481, semble (similar; but the point decided
is left obscure). 1907, Patton v. Sanborn, 133 la. 650, 110 N. W. 1032. 1907, State v.
Blydenburg, 135 la. 264, 112 N. W. 634 (approving Keyes v. Cedar Falls).
Kan. : 1908, St. Louis & S. F. R. Co, v. Chaney, 77 Kan. 276, 94 Pac. 126 (there must be
preliminary evidence to indicate that the statements were spontaneous and not manu-
factured ; explaining A. T. & S. F. R. Co. v. Johns ; no authority cited for this novel re-
quirement) ; IN. B. in Vol. I, p. 2213, § 1719, n. 9, of the present work, the Johns Case
supra is cited by volimie and page, but by the erroneous title of Brooks v. Hall]. 1912,
State V. Buck, 88 Kan. 114, 127 Pac. 631 (murder by poisoning; deceased's statements
that the doses burned her stomach, admitted).
Mo. : 1905, McHugh v. St. Louis T. Co., 190 Mo. 85, 88 S. W. 863.
Nebr.: 1905, Western Travelers' Ace. Ass'n v. Munson, 73 Nebr. 858, 103 N. W. 688.
1907, Nixon v. Omaha & C. B. St. R. Co., 79 Nebr. 550, 113 N. W. 117.
Nev. : 1910, Sherman v. Southern Pacific Co., 33 Nev. 385, 111 Pac. 416.
N. D. . 1905, Puis V. Grand Lodge, 13 N. D. 559, 102 N. W. 165.
Or. : 1909, Smith v. Smith, 55 Or. 128, 105 Pac. 706.
W. Va. : 1905, Stevens v. Friedman, 58 W. Va. 78, 51 S. E. 132 (battery ; complaints "ex-
hibiting the natural symptoms and effects of the injury," admitted).
§ 1721. Statements Post Litem Motam.
Note 1 ; add :]
III. : 1904, Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28 (during treatment, but
after action begun, admitted).
1908, Greinke v. R. Co., 234 111. 564, 85 N. E. 327 ("declarations of the injured party
made to a. physician who has made an examination of such party with a view to qualify
himself to testify as a witness, only, are not admissible ; " semble, movements controllable
by volition are equally excluded). 1908, Shaughnessy v. Holt, 236 HI. 485, 86 N. E. 256
(patient's expressed sensations and answers made at an examination by physicians solely
for the purpose of qualifying as witnesses, excluded). 1908, Casey v. Chicago City R. Co.,
237 111. 140, 86 N. E. 606 (similar). 1910, Louth v. Chicago M. T. Co., 244 111. 244, 91
N. E. 431 (personal injury; laymen who have observed the plaintiil in ordinary course
of life may testify to his appearance and expressions with reference to nervousness and the
like ; Greinke v. R. Co. and Shaughnessy v. Holt distinguished as applying only to physi-
cians consulted to qualify them for trial testimony).
391
§ 1721 HEARSAY RULE
[Note 1 — continued]
la.: 1909, Johnston v. Cedar Rapids & M. C. R. Co., 141 la. 114, 119 N. W. 286 (unde-
cided).
Mich.: 1904, Comstock v. Georgetown, 137 Mich. 541, 100 N. W. 788 (testimony as to an
injured person's "flinching," etc., at the touch of a doctor called a week before trial, and
not for treatment, excluded). 1905, McCormick v. Detroit G. H. & M. R. Co., 141 Mich. 17,
104 N. W. 390 (Strudgeon v. Sand Beach, supra, approved and applied). 1905, O'Dea v.
Michigan C. R. Co., 142 Mich. 265, 105 N. W. 746 (statements to the defendant's physician,
called in expectation of his giving testimony, excluded).
Wis. : 1904, Kath v. Wisconsin C. R. Co., 121 Wis. 503, 99 N. W. 217 (not admissible when
made to a physician " after action is brought or threatened") .
§ 1722. Kind of Fact Narrated, etc.
[Note 1, par. 1 ; ndd:]
1912, Amys v. Barton, 1 K. B. 40 (injury to a workman in a field ; his statement that a
wasp stung him, etc., held inadmissible).
1912, Youlden v. London G. & A. Co., Ont. H. C. J., 4 D. L. R. 721 (by a workman injured,
that "he thought he had hurt himself," admitted, to show the internal condition, but not
its cause ; English cases under the Workmen's Compensation Act, examined).
1913, St. Louis I. M. & S. R. Co. n. Williams, 108 Ark. 387, 168 S. W. 494.
1906, Indiana U. T. Co. v. Jacobs, 167 Ind. 85, 78 N. E. 325 ("She told me that she had an
injured limb," admitted).
1905, Shade's Adm'r v. Covington C. E. R. & T. & B. Co., 119 Ky. 592, 84 S. W. 733 (that
she had fallen on the ice on the defendant's bridge, excluded).
1904, Fallon v. Rapid City, 17 S. D. 670, 97 N. W. 1009 (that a sprain was caused by a
defective sidewalk, excluded).
[Note 2, par. 1 ; add, under Accord:]
1904, Cashin v. N. Y. H. H. & H. R. Co., 185 Mass. 543, 70 N. E. 930.
1906, Weeks v. Boston El. R. Co., 190 Mass. 563, 77 N. E. 664 (certain complaints, held
here not to state past pain).
1904, Boyd v. State, 84 Miss. 414, 36 So. 525 (poisoning; statements of symptoms a few
days before, excluded).
1908, Wilkins v. Brock, 81 Vt. 332, 70 Atl. 572.
[^■0*6 3; add:]
In Louisville & N. R. Co. v. Smith, — Ky. — , 84 S. W. 755 (1905), statements as to mental
suffering were excluded, but improperly, it would seem.
[Note 4, par. 1 ; add, under Accord :]
1907, State ». Blydenburg, 135 la. 264, 112 N. W. 634 ("the clinical history of the case,"
allowed ; following Roosa v. Loan Co., Mass.).
1905, Shade's Adm'r v. Covington C. E. R. & T. & B. Co., 119 Ky. 592, 84 S. W. 733 (per-
haps qualifying the Omberg case).
1907, Com. V. Sinclair, 195 Mass. 100, 80 N. E. 799 (abortion; statements by the patient
to a physician that she had been operated on for pregnancy and had had a miscarriage, not
admitted under the rule of Roosa v. Loan Co.).
1912, Acme C. P. Co. v. Westman, 20 Wyo. 143, 122 Pac. 89.
[Note 5, par 1 ; add:]
1913, Louisville & N. R. Co. v. Sealf, 155 Ky. 273, 159 S. W. 804 (not clear in its limita-
tions).
392
EXCEPTIONS : STATEMENTS OF MENTAL CONDITION, ETC. § 1726
§ 1725. Statements of Design or Plan.
[Notel; aM:]
1905, Nordan v. State, 143 Ala. 13, 39 So. 406 (murder by abortion : deceased's expres-
sions of intent to commit suicide, admitted).
1904, State v. Kelly, 77 Conn. 266, 58 Atl. 705 (murder by poisoning; deceased's declara-
tions of intention to commit suicide, held admissible, but confined in the trial Court's dis-
cretion to a period of two months before; good opinion by Prentice, J., on the subject of
remoteness of time ; Com. v. Trefethen approved).
1912, States. Beeson, 1551a. 355, 136 N. W. 317 (wife-murder; her expressions of intention
to commit suicide, etc., admitted ; approving Com. v. Trefethen, and the text supra). 1913,
Ott V. Murphy, — la. - — , 141 N. W. 463 (libel on a candidate for public office ; on the
issue whether he was a candidate, his declarations of intention were admitted).
1910, Com. V. Howard, 205 Mass. 128, 91 N. E. 397 (whether a deed was suicide or murder ;
the deceased's statements of intention in going to the place, admitted for the prosecution).
1912, People v. Fritch, 170 Mich. 258, 136 N. W. 493 (death by abortion; the deceased's
declarations, before and after visiting the defendant, held admissible only so far as involving
statements of her intention to have an operation, but not posterior statements of her
transaction with the defendant).
1909, State v. Kane, 77 N. J. L. 244, 72 Atl. 39 (burglary ; declaration of intention, the
prior day, as to a meeting at the place where arrested, admitted).
1905, Clemens v. Royal Neighbors, 14 N. D. 116, 103 N. W. 402 (note written by deceased
just before death, admitted on the issue of suicide).
[Note 2; add:]
1904, People v. Barker, 144 Cal. 705, 78 Pac. 266 (letters from the absent person, admitted
to show his absence and intent not to return).
. 1898, Hill V. Winston, 73 Minn. 80, 75 N. W. 1030 (absent person's declarations as to resi-
dence, and the sheriff's return of not found, admitted).
Contra: 1907, Cuff v. Frazee S. & C. Co., 14 Ont. L. R. 263 (unsound; no authority cited
on this point).
But the present principle need not be strained in admitting such evidence, for the broader
principle of § 1789, post, suffices.
[NoteS; add:]
1908, Dunham v. Cox, 81 Conn. 268, 70 Atl. 1033 (issue of payment; the party's statements
of intention to pay, while on the way with the money, held admissible, but here not properly
offered).
[Note 4; add:]
The following ruling is unique :
1907, Conklin v. Consolidated R. Co., 196 Mass. 302, 82 N. E. 23 (assault by a car-conductor
on a passenger ; to show that the conductor began the affray, the conductor's statement,
shortly before, that he would "assault some one on the cax before he got through," was
excluded ; the opinion concedes its relevancy, but excludes it because it did not satisfy
the rule for agents' admissions ; this perverse ruling is calculated to shake one's faith in
the possibility of ever improving our law of evidence, for it ignores the simple and funda-
mental principle of multiple relevancy, ante, § 13).
§ 1726. Same : Contrary Rulings Explained.
[Note 4; add:]
1912, Thomson's Case, 7 Cr. App. 276, 3 K. B. 19 (abortion in March, 1912 ; the woman's
statement in February that she intended to do it herself, excluded : no authority cited :
393
t 1726 HEARSAY RULE
[Note 4 — continued]
it is strange that in this day and generation an English court can be so uninformed upon
the principles of the law of evidence ; the K. B. report is not accurate).
1904, Nordgren d. People, 211 III. 425, 71 N. E. 1042 (wife-murder by poisoning; deceased's
expressions of intention to commit suicide, and of depression of mind, held admissible ;
Siebert v. People, supra, held to represent "undoubtedly the correct rule," but distinguished
because here the declarations were "part of the res gestm," explanatory of the acts of keeping
liquor and strychnine in her room ; this is a groundless distinction ; the Court should have
plainly abandoned the improper rule of Siebert ». People, instead of introducing new oppor-
tunity for confusion; Jumpertz «. People, anie, § 143, n. 1, is not cited).
1906, Clark ». People, 224 111. 554, 79 N. E. 941 (murder by attempted abortion ; the de-
ceased's declarations, over a year before her death, that she had committed an abortion
upon herseK "and would repeat it if necessary," held inadmissible, as "mere hearsay,"
following Siebert v. People).
[Note 5; add:]
1913, Foster i>. Shepherd, 258 111. 184, 101 N. E. 411 (deceased's expressions of intention
to spend the night at his mother's home, as evidence of his conduct in being later at a certain
place, excluded citing the Chancellor case ; see an extended comment in 8 Illinois Law
Review 203).
1913, Barker v. Massachusetts M, L. Ins. Co., 163 N. C. 175, 79 S. E. 424 (declarations of
a husband, a fortnight before death, as to need of a pistol, excluded in an action on the policy
with an issue of suicide; ill-considered opinion, citing not a sifigle authority).
1909, Clark v. State, 56 Tex. Cr. 293, 120 S. W. 179 (deceased's expressions of intention to
arrest defendant, excluded, here on the ground that his intention was immaterial ; unsound).
1912, MuUins v. Com., 113 Va. 787, 75 S. E. 193 (murder; deceased's statement before
leaving that accused was going with him, excluded; unsound).
§ 1727. Statements of Intent, in Domicil Cases.
[Note 2; add:]
1895, Davis v. Adair, L. R. 1 Ire. 379, 396, 430, 438, 444 (a peculiar case).
§ 1729. Statements of Motive, Reason, or Intent.
[Note 2, par. 1; add:]
1908, Barry v. McCoUom, 81 Conn. 293, 70 Atl. 1035 (libel ; defendant's declarations, show-
ing-a good motive, made a week or two before, admitted).
1905, Flynn v. Coohdge, 188 Mass. 214, 74 N. E. 342 (malicious prosecution, and damage
by C.'s refusal to lease a building to the plaintiff ; C.'s statement of his reason for refusing,
excluded only because not made before action begun). 1906, Pierson v. Boston El. R. Co.,
191 Mass. 223, 77 N. E. 769 (damage by noise; the statements of reasons given by the
plaintiff's customers when leaving his restaurant, "We can't talk here and hear ourselves,"
admitted). 1908, Hubbard v. Allyn, 200 Mass. 166, 86 N. E. 356 (libel; customers' state-
ments declining to buy because of the badness of the merchandise of the plaintiff as alleged
by the defendant, admitted, on the issue of damage).
1911, Lawlor v, Loewe, C. C. A., 187 Fed. 522 (action for damage done by a boycott by a
labor union; testimony of the plaintiff's salesman that customers had reported to him
threats by labor union representatives of trouble from the union if he handled the plaintiff's
goods, held improper since "in some of the instances testified to " the present rule "should
not be extended as far as it was").
1908, State d. Ryder, 80 Vt. 422, 68 Atl. 652 (motive for destroying letters; statement
made while burning them, admitted).
394
EXCEPTIONS : STATEMENTS OF MENTAL CONDITION, ETC. § 1730
§ 1730. Statements of Emotion, Bias, Malice, Affection, etc.
[Note 1; add:]
1909, Luckey v. Western U. Tel. Co., 151 N. C. 551, 66 S. E. 596 (non-delivery of a telegram
announcing a mother's death ; the mother's expressions showing affection for a son, ad-
mitted).
[Note 2; add:]
1894, Williams v. Williams, 20 Colo. 51, 37 Pac. 614 (alienation of a husband's affections by
his mother ; the husband's declarations as to the defendant's conduct, admitted "to deter-
mine the cause or motive which prompted his separation from his wife").
1906, Hardwjck v. Hardwick, 130 la. 230, 106 N. W. 639 (alienation of a husband's affections
by a father-in-law; the husband's statements to his wife, on taking leave, as to being
influenced by his father, admitted; two judges dissent, citing no authority). (In this
treatise, original text, the Iowa case cited as Kennedy v. Hensley, 94 la. 629, should be
Bailey v. Bailey, 94 la. 528.)
1904, Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492 (alieijation of affections; husband's
statements admitted to show the som"ce of his change of mind).
1910, Fuller v. Robinson, 230 Mo. 22, 130 S. W. 343 (statements by the wife, admitted;
semble, statements after her alleged misconduct would be inadmissible, if collusion with the
husband were likely ; so also the defendant's wife's conduct indicating coolness is admissible).
1909, Cochran v. Cochran, 196 N. Y. 86, 89 N. E. 470 (husband's declarations, excluded ;
E. T. Bartlett, J., diss.).
1913, Ickesii. Ickes, 237 Pa. 582, 85 Atl. 885 (alienation of affections; defendant's state-
ment of his intention to leave and his motive therefor, made prior to leaving, admitted ;
but the Court seems incorrectly to place the ruling on the principle of § 1725, ante).
1911, Luick V. Arends, — N. D. — , 132 N. W. 353 (alienation of wife's affections; her
declarations of affection or the opposite, up to the time of the defendant's influence, ad-
missible, but not to include statements of the conduct causing it).
1909, White v. White, 140 Wis. 538, 122 N. W. 1051 (husband's declaration, in wife's
action, admitted).
[Text, p. 2227, 1. 3; inseH the following :]
In such an action, in particular for alienation of affections, the utterances
of the alienated spouse, exhibiting the mental condition, of alienation and
the motives therefor, sometimes refer to acts and utterances of the defendant
as the alienating influence, e.g. when the alienated wife says to her husband,
referring to the defendant, " He offered to marry me if I could get a divorce
from you and so I am ready to leave you." Here the alleged utterances
of the defendant need not be taken as facts, much less as true assertions
(post, § 1768), but the wife's reference to them is plainly evidential of the
relation of cause and effect in her mind between her present alienation of affec-
tions and the defendant's influence, i.e. her motive (ante, § 1729) ; therefore,
supposing that the fact of the defendant's efforts and influence is otherwise
evidenced, the wife's utterances of the above sort should be received to show
their result on her state of mind.^" In this aspect, the defendant's utter-
ances and acts as recited by her are not hearsay, but fall under the principle
of § 1768, post.
2» Accord:
1894, Williams v. Williams, 20 Colo. 51, 58, 37 Pac. 614.
1908, Hillers v. Taylor, 108 Md. 148, 69 Atl. 715 (doctrine approved ; but held not to admit
395
§ 1730 HEARSAY RULE
[Text, p. 2227 — continued]
an utterance which merely recited conduct of the defendant, and thus had no significance
under the present doctrine).
1911, Hillers v. Taylor, 116 Md. 165, 81 Atl. 286 (husband's conversations, unspecified, here
held admissible, following the rule of the prior decision).
1887, Edgell v. Francis, 66 Mich. 303, 33 N. W. 601 (cited supra, n. 2).
CoTttra: 1905, Humphrey v. Pope, 1 Cal. App. 374, 82 Pac. 223.
1889, Huling v. Huling, 32 111. App. 519, 521.
1884, Higham v. Vanosdol, 101 Ind. 160, 164 (cited supra, n. 2).
1908, Leucht v. Leucht, 129 Ky. 700, 112 S. W. 845 (the opinion apparently does not per-
ceive the distinction).
1861, Preston v. Bowers, 13 Oh. St. 1, 11 (cited supra, n. 2). 1878, Westlake v. Westlake,
34 id. 621, 634.
1914, Prison v. McKellop, — Okl. — , 137 Pac. 154 (alienation of husband's affections;
the husband's statements to the wife as to what the defendant his mother had said to him,
excluded).
[NoteZ; add:]
1907, Gilbert v. The King, 38 Can. Sup. 284 (by the deceased, on the approach of the de-
fendant, "don't let him knife me," admitted).
1909, State v. Draughon, 151 N. C. 667, 65 S. E. 913 (father's expressions of gratitude etc.
to his son, admitted).
§ 1732. Sundry Statements by an Accused Person.
[Note 3 ; add, under Contra :]
1905, State v. Dean, 72 S. C. 74, 51 S. E. 524 (murder; the accused's prior statements of
innocent purpose in going to the place, excluded).
' [Note 4 ; add .•]
1908, Hill V. State, 156 Ala. 3, 46 So. 864.
[iVofe6; add:]
1909, Maddox v. State, 159 Ala. 53, 48 So. 689 (Mayfield, J., "The writer of this opinion
thinks that this Court and some trial Courts have gone too far, in certain of the cases re-
ported, in admitting such evidence against the accused" ; here admitting declarations of the
accused made at and about the time of leaving home, but excluding others made later ; the
learned Court, instead of excluding more evidence against accused persons, should admit
more evidence for them ; the logic-chopping in such cases as the present seems a pitiable
method of getting at the truth about a murder, — pitiable, that is, when one reflects that it
is the method used by able men administering a great legal system, and fancying them-
selves to be doing its proper service ; it is the emptiness of their illusion that is so pitiable) .
1910, White v. State, 59 Fla. 53, 52 So. 805 (certain prior conversations, held admissible).
1904, Taylor v. State, 121 Ga. 348, 49 S. E. 303 (statements that he was afraid to go where the
deceased was, excluded).
1910, State v. Kinchen, 126 La. 39, 52 So. 185 (here the Court falls back in defence, as many
others have done, on the bugbear phrase, invented apparently by Mr. Wharton, "self-serving,"
a term which merely perpetuates the long-abandoned doctrine of interest, i.e. every person
when speaking on a matter in which he is interested is presumably false in every detail ;
this worn-out notion should be totally discarded).
1905, State v. Atchley, 186 Mo. 174, 84 S. W. 984 (murder ; defendant's application to have
the deceased put under a peace-bond, excluded).
1904, State v. Raymo, 76 Vt. 430, 57 Atl. 993 (assault on B. ; plea, self-defence ; defendant's
declaJations of fear of B.. prior to the assault, excluded).
396
EXCEPTIONS : STATEMENTS OF MENTAL CONDITION, ETC. § 1736
[Note 7, par. 1 ; add:]
1905, Merrell v. Dudley, 139 N. C. 57, 51 S. E. 777 (malicious prosecution ; defendant's
statements at the time of suing out the warrant, admitted in his favor).
1909, Huntington v. U. S., 8th C. C. A., 175 Fed. 950, 956' (fraudulent entries under the
homestead laws, by false representations to entrymen ;■ true representiations to other entry-
men during the same period, excluded; Philips, J., diss., citing the above text).
1913, Gould V. U. S., 8th C. C. C, 209 Fed. 730 (fraudulent use of mails for urigation lands
investment ; letter of one defendant to another held admissible to show good faith).
[Note 10; add:]
Accord: 1907, State v. Rutledge, 135 la. 581, 113 N. W. 461.
Contra: 1907, Day v. State, 54 Fla. 25, 44 So. 715 (murder; statement when handing over
the knife upon arrest, excluded).
1908, Lyles v. State, 130 Ga. 294, 60 S. E. 578 (wife-murder ; immediately upon the sound
of the shots, witnesses arrived, and the defendant said: "Gentlemen, come in here; my
God ! I have shot my wife ! ' ' excluded ; a flagrant instance of the dogged and needless cruelty
to which our technical methods lead).
[Text, p. 2230, 1. 9 from below :]
After " should," insert " not."
§ 1736. Post-Testamentaxy Statements as to Execution, etc.
[Note 2; add:]
1895, Leslie «. McMurty, 60 Ark. 301, 30 S. W. 33 (declarations that he had made no will,
admissible on an issue of forgery).
1905, Spencer's Appeal, J7 Conn. 638, 60 Atl. 289 (certain declarations admitted, but only
because of lack of proper objection).
1906, Dunahugh's Will, 130 la. 692, 107 N. W. 925 (whether a revoking will had been made ;
the testatrix' statements, just before death, that she had made one, excluded ; the opinion
relies upon a passage in an encyclopedia "citing the following cases" which include Sugden
V. St. Leonards, Engl., Lane v. Hill, N. H., and Tynan v. Paschal, Tex., infra, n. 3 ; the
learned judge evidently was not aware that the cases cited decide precisely the opposite).
1907, Smith v. Ryan, 136 la. 335, 112 N. W. 8 (subsequent declarations, not admitted to
show revocation). 1912, Nixon v. Snellbaker, 155 la. 390, 136 N. W. 223.
1910, Giles V. Giles, 204 Mass. 383, 90 N. E. 595 (testator's declarations not admitted to
show that a revocatory writing, executed as required by law, had been made ; the Court
fails to distinguish between prior declai^ations of intention and subsequent assertions).
1904, Colbert's Estate, 31 Mont. 461, 78 Pac. 971, 80 Pac. 248 (whether a lost will had been
revoked; the testator's statements that he was satisfied with it, excluded; following
Throckmorton v. Holt, U. S.).
1903, Stevens v. Stevens, 72 N. H. 360, 56 Atl. 916 (will found, but alleged to have been
revoked ; declarations of the testator that he had revoked it, excluded ; yet the opinion
purports to approve Lane v. Hill, N. H., infra, n. 3, and perhaps would have admitted the
evidence as corroborative).
1901, Throckmorton v. Holt, U. S., cited aupra; in view of the authority of this Court, and
the frequent citation of this decision, it should be noted that the opinion is only a quicksand
for those who seek guidance on this subject.
[NoteS; add:]
1903, Stewart v. Walker, 6 Ont. L. R. 495, 603 ("while the decision in Sugden v. Lord St.
Leonards stands, it must be accepted as the law that declarations subsequent to the making
of a will are admissible as secondary evidence of its contents").
397
§ 1736 • HEARSAY RULE
[Note 3 — continued]
1914, Burton v. Wylde, 261 111. 397, 103 N. E. 976 (revocation by cutting out the signature,
etc. ; testatrix' declarations that she had destroyed her will, admitted ; sensible opinion,
ignoring all the vain theoretical distinctions, and admitting virtually all post-testamentary
utterances).
1906, Inlow V. Hughes, 38 Ind. App. 375, 76 N. E. 763 (post-testamentary declarations as
to the tenor of a lost will, held admissible only "by way of corroboration" of the testimony
of two witnesses required by Rev.' St. 1901, § 2779, quoted post, § 2052).
1905, Mann v. Balfour, 187 Mo. 290, 86 S. W. 103 (after evidence of execution and loss, the
testator's declarations as to contents, etc., are admissible in corroboration).
1904, Davenport v. Davenport, 67 N. J. Eq. 320, 58 Atl. 535 (lost will ; the testator's declara-
tions of contents "a few days after the alleged wUl was executed," admitted ; purporting to
follow Rusling v. Rusling, N. J., post, § 1738, which deals with a different question, and
ignoring Boylan ». Meeker and Gordon's Will, N. J., supra, n. 2).
1906, Shelton's Will, 143 N. C. 218, 55 S. E. 705 (exception recognized, following Jessel,
M. R., in Sugden v. St. Leonards, and Reel v. Reel, N. C, cited post, § 1738, n. 2 ; here a will
bore a revocatory writing, legally sufficient, and the testator's subsequent declarations were
admitted on the issue of its genuineness).
1907, Miller's Will, 49 Or. 452, 90 Pac. 1002 (lost will; testatrix' declarations, up to a short
time before her death, that it was still on deposit in the bank and unrevoked, held admissi-
ble ; following Cockburn, C. J.'s, view in Sugden v. St. Leonards ; able opinion by King, C).
[Note A; add:]
1913, Longer v. Beakley, 106 Ark. 213, 153 S. W. 811 (whether an insurance-policy request
for change of beneficiary had been authorized : the insured's subsequent reference to the
original persons as beneficiaries, and his affection for them, admitted ; McCuUoch, C. J.,
diss. ; the dissenting opinion correctly points out that the issue is analogous to that of
execution of a will, and that the majority opinion seems to go upon the principle of capacity ;
nevertheless, the result of the decision is sound).
1905, Lappe v. Gfeller, 211 Pa. 462, 60 Atl. 1049 (destroyed will, said to have been forged ;
declarations of the deceased, for some months prior to his death, "inconsistent with the
existence and validity of the alleged will," admitted, "as throwing some light on the ques-
tion of fraud and forgery").
1913, Jackson v. Hewlett, 114 Va. 573, 77 S. E. 518 (facts similar to Sugden v. St. Leonards ;
declarations admitted to rebut intention to revoke).
§ 1737. Statements indicating Intent to Revoke.
[Nctel; add:]
Compare also the case cited post, § 1777 (declarations of a testator accompanying a delivery
of money or chattels).
[Note 3, par. 1 ; add :]
And compare the cases on intention as evidence of a later execution, alteration, or revocation,
anie, § 112.
1913, Aldrich v. Aldrich, 215 Mass. 164, 102 N. E. 487 (statements to counsel in regard to
a will, indicative of intent to revoke, held admissible ; following Pickens v. Davis).
§ 1738. Statements as to Undue Influence or Fraud.
[Nate 1, par. 7; add:]
1913, Gleason's Estate, Corbin v. Gleason, 164 Cal. 756, 130 Pac. 872 (Calkins' Estate
followed). 1913, Jones' Estate, Baker v. Jones, 166 Cal. 108, 135 Pac. 288 ("I was talked
into making the will," etc., excluded).
398
EXCEPTIONS : STATEMENTS OF MENTAL CONDITION, ETC. § 1738
[Note 1 — continued]
1901, Vivian's Appeal, 74 Conn. 257, 261, 60 Atl. 797 (Comstock v. Hadlyme followed ; good
opinion, by Baldwin, J.).
1903, Utermehle v. Norment, 22 D. C. App. 31 (testator's declarations of intent to leave a
share to the caveatee, excluded on the facts ; principle obscure).
1912, Norton v. Clark, 253 111. 557, 97 N. E. 1079.
1879, Todd v. Fenton, 66 Ind. 25, 31 (similar to Hayes v. West). 1883, VanvaLkenberg
V. Vanvalkenberg, 90 Ind. 433, 438 (sinailar).
1909, Jones v. Thomas, 218 Mo. 508, 117 S. W. 1177.
1906, Mueller v. Pew, 127 Wis. 288, 106 N. W. 840 (Loennecker's Will approved).
[Note 2; add:]
1907, Shelton's Will, 143 N. C.-218, 55 S. E. 705 (approving Reel v. Reel). 1906, Linebarger
V. Linebarger, 143 N. C. 229, 55 S. E. 709 (an opinion filed on the same day as the preceding
but by a different judge, refers to the rule of Reel v. Reel as a "much vexed question").
1912, Fowler's WiU, 159 N. C. 203, 74 S. E. 117 (approving Howell v. Barden).
[NoU3; add:]
1908, Rose v. Bouck, 2 Alta. 263 (subsequent statements of the testator considered ; distin-
guishing the improper use as confirming a will admittedly void for undue influence, etc.).
1896, Calkins' Estate, 112 Cal. 296, 44 Pac. 577. 1905, Arnold's Estate, 147 Cal. 583, 82
Pac. 252. 1910, Snowball's Estate, 157 Cal. 301, 107 Pac. 590 (following Arnold's Estate).
1912, Piercy v. Piercy, 18 Cal. App. 751, 124 Pac. 561.
1907, Kultz V. Jaeger, 29 D. C. 300 (undue influence by husband over wife ; wife's statements
as to relations with husband exhibiting fear of husband, excluded ; following Throckmorton
V. Holt, infra, n. 4).
1905, Credille v. Credille, 123 Ga. 673, 51 S. E. 628 (declarations, the day after signing, that
he had never made a will, and that if he had signed a certain will, he did not know what he
was doing, admitted, with the above discriminations).
1911, Wilkinson v. Service, 249 III. 146, 94 N. E. 60, semble. 1913, Kellan v. Kellan, 258
111. 256, 101 N. E. 614 (undue influence, exercised by L. K., a legate; a postcard, written
by L. K. to his sister, and reading, "Had aunt fix things somewhat Monday; cut Ed and
Ellen off for one dollar, but they don't know it," was excluded ; this shows how the rule sup-
presses good evidence).
1906, Townsend's Estate, 128 la. 621, 105 N. W. 110 (that "the boys would not hear to his
giving E. anything," held, "if competent of slight value" ; the opinion might have made a
more exphcit ruUng). 1904, Wiltsey's Will, 122 la. 423, 98 N. W. 294 (Muir v. Miller fol-
lowed). 1907, Vannest v. Murphy, 135 la. 123, 112 N. W. 236. 1907 Kah's Estate, 136
la. 116, 113 N.W. 563.
1904, Powers' Ex'r v. Powers, — Ky. — , 78 S. W. 152 (Wall v. Dimmitt followed). 1910,
GiUispie's Ex'r v. GilUspie, — Ky. — , 128 S. W. 1064.
1908, O'Dell V. Goff, 163 Mich. 643, 117 N. W. 69.
1908, Teckenbroeck v. McLaughlin, 209 Mo. 533, 108 S. W. 46 (prior cases examined;
liberal and sensible opinion by Lamm, J.).
1883, Rusling v. Rusling, 36 N. J. Eq. 603 (quoted supra in the text).
1912, Gick V. Sturnpf, 204 N. Y. 413, 97 N. E. 865 (undue influence; certain subsequent
writings of the testatrix, excluded, as not illustrative of mental condition). 1912, Smith v.
Keller, 205 N. Y. 39, 98 N. E. 214 (inadmissible "as affirmative statements of fraud").
1905, Hobson ». Moorman, 115 Tenn. 73, 90 S. W. 152 (cited infra, n. 4).
1914, Scott V. Townsend, — Tex. — , 166 S. W. 1138 (that testator said his wife "had been
after him to make a will," and "had always wanted him to make a will," excluded ; but it
seems strange that we can endure a system of trials which sets aside a verdict and remands
a case for the exclusion of such^ evidence).
399
§ 1738 HEARSAY RULE
[Note 4 ; add :]
1905, Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242 (the provisions of an alleged will
may be compared with his "fixed purposes and intentions," including declarations that
he had made no will; but the opinion erroneously admits this on an issue of "mental
capacity").
1904, McKenna's Estate, 143 Cal. 580, 77 Pac. 461 (conversations, on the issue of insanity,
distinguished from the present question).
1894, Bevelot v. Lestrade, 153 111. 625, 631, 38 N. E. 1056 (declarations conflicting with the
prpvisions of the will, not admitted). 1906, Compher v. Browning, 219 111. 429, 76 N. E.
678 (declarations of testamentary plans, admitted so far as harmonious with the will, i.e. in
rebuttal of the alleged undue influence ; but not so far as they conflict with the will's provi-
sions; like Kaenders v. Montague, but not citing it). 1906, Waters v. Waters, 222 111. 26,
78 N. E. 1 (rule of Kaenders v. Montague followed). 1907, Cheney v. Goldy, 225 111. 394, 80
N. E. 289 (rule of Compher v. Browning applied) . 1908, Floto v. Floto, 233 111. 605, 84 N. E.
712 (same). 1908, Preund v. Becker, 235 111. 513, 85 N. E. 610 (rule of Kaenders v. Montague
followed). 1910, Hurley v. Caldwell, 244 111. 448, 91 N. E. 654 (opinion unclear ; Dowie v.
Driscoll and Compher v. Browning cited). 1905, Westfall v. Wait, 165 Ind. 353, 73 N. E.
1089 (Goodbar v. Lidikay, approved).
1904, Selleck's Will, 125 la. 678, 101 N. W. 453 (terms of a prior will, admitted). 1905,
Glass' Estate, 127 la. 646, 103 N. W. 1013 (a trust deed of three years before, admitted, on
an issue of undue influence, as a "written declaration").
1905, Hagar v. Norton, 188 Mass. 47, 73 N. E. 1073 (transfer of stock, etc., under undue
influence ; the deceased transferor's declarations of intent as to the devolution of her prop-
erty, admitted, following Shailer v. Bumstead).
1904, Roberts v. Bidwell, 136 Mich. 191, 98 N. W. 1000 (Bush v. Delano followed). 1909;
Loree's Estate, 158 Mich. 372, 122 N. W. 623 (former wills, etc.).
1910, Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641 (former will, admitted).
1905, Hobson v. Moorman, 115 Tenn. 73, 90 S. W. 152 (declarations admissible to "illustrate
the mental capacity of the testator and his susceptibility to extraneous influence, and also
to show, his feelings, intentions, and relations to his kindred and friends," but not "as
substantive evidence of undue influence" ; the opinion specially denies that ante-testamen-
tary declarations are usable for the last-named purpose, i.e. that noticed supra, n. 1).
1908, Young's Estate, 33 Utah 382, 94 Pac. 731 (former will, admitted).
1907, Wallen v. Wallen, 107 W. Va. 131, 57 S. E. 596 (the several uses obscurely merged).
§ 1739. Intelligent Execution.
[Note 1 ; add :]
1909, Thomas' Estate, 155 Cal. 488, 101 Pac. 798 (forged will; decedent's declarations as
to his age and relationships, variant with the recitals of the will, admitted as evidence that
the will was a forgery).
1904, Wheelock's Will, 76 Vt. 235, 56 Atl. 101^ (testator's letters, showing knowledge of
the will, admitted).
Contra: 1906, Lipphard v. Humphrey, 28 D. C. App. 355, 361 (the opinion oddly asserts
that "the proposition is without any foundation either on principle or authority").
§ 1746. Spontaneous Exclamations; a Genuine Exception to the Hear-
say Rule.
[Text, p. 2250, 1. 6, at the end ; add a new note 1 :]
> 1908, People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690 (approving the above theory of
the exception).
400
EXCEPTIONS : SPONTANEOUS EXCLAMATIONS § 1750
§ 1750. Same : Requirements.
[Note 2; add:]
1906, Christopherson v. Chicago M. & St. P. R. Co., 135 la. 409, 109 N. W. 1077.
1904, State v. Foley, 113 La. 52, 36 So. 885.
1908, People v. Del Vermo, 192 N. Y., 470, 85 N. E. 690 (approving the above theory of
the exception).
[Text, p. 2257, 1. 3 from below, after "trial Court," add a new note 2a:]
2» 1907, Pittsburg C. C. & St. L. R. Co. v. Haislup, 39 Ind. App. 394, 79 N. E. 1035 (the
above passage quoted with approval).
[Noted; add:]
England: 1912, Thomson's Case, 7 Cr. App. 276 (abortion on Mar. 21; the woman's
statement on Mar. 28 that she had done it herseU, excluded).
Canada : Dom. : 1907, Gilbert v. The King, 38 Can. Sup. 284 (murder ; deceased's state-
ment when fleeing from the defendant).
Ont. : 1903, Garner v. Stamford, 7 Ont. L. R. 50 (highway injury).
United States : Ala. : 1904, Pitts v. State, 140 Ala. 70, 37 So. 101 (accused). 1904, Harbour
V. State, 140 Ala. 103, 37 So. 330 (miu:der ; exclamation of the defendant's daughter, an eye-
witness, admitted). 1905, State v. Stallings, 142 Ala. 112, 38 So. 261 (accused). 1905,
Nordan v. State, 143 Ala. 13, 39 So. 406 (deceased). 1912, Alabama C. G. & A. R. Co. v.
Heald, 178 Ala. 636, 59 So. 461 (injury by a street-car). 1912, Bessierre v. Alabama C. G. &
A. R. Co., — Ala. — , 60 So. 82 (motorman).
Ariz. : 1908, Soto v. Terr., 12 Ariz. 36, 94 Pac. 1104 (boy's complaint after an assault).
Ark.: 1906, Kansas C. S. R. Co. v. Morris, 80 Ark. 528, 98 S. W. 363 (person killed at a
railroad).
1908, Beal-Doyle D. G. Co. v. Carr, 85 Ark. 479, 108 S. W. 1053 (elevator accident).
Col. : 1905, Murphy v. Board, 2 Cal. App. 468, 83 Pac. 677 (injured person ; a glaring in-
stance of illiberal ruling).
Colo.: 1911, Salas v. People, 51 Colo. 461, 118 Pac. 992 (murder).
D. C. : 1904, District of Columbia v. Dietrich, 23 D. C. App. 577 (sidewalk injury). 1905,
Patterson v. Ocean A. & G. Co., 25 D. C. App. 46, 66 (injured person). 1906, Grant v. U. S.,
28 D. C. App. 169 (deceased in homicide). 1912, Washington R. & E. Co. v. Wright, 38 D. C.
App. 268 (street-car accident).
Del.: 1904, Di Prisco v. Wilmington C. R. Co., 4 Del. 527, 57 Atl. 906 (child run
over).
Ga. : 1905, Goodman v. State, 122 Ga. Ill, 49 S. E. 922 (deceased). 1905, Kemp v. Central
of Ga. R. Co., 122 Ga. 559, 50 S. E. 465 (engineer). 1905, Pool v. Warren Co., 123 Ga.
205, 51 S. E. 328 (injury at a bridge). 1905, White v. Southern R. Co., 123 Ga. 353, 51 S. E.
411 (raih-oad injury). 1906, Warrick v. State, 125 Ga. 133, 53 S. E. 1027 (accused),
1906, McBride v. Georgia R. & E. Co., 125 Ga. 515, 54 S. E. 674 (injured person). 1906.
Southern R. Co. ■». Brown, 126 Ga. 1, 54 S. E. 911. 1908, Herrington v. State, 130 Ga.
307, 60 S. E. 572 (deceased in homicide). 1908, Lyles v. State, 130 Ga. 294, 60 S. E. 578
(defendant in homicide). 1911, Walker v. State, 137 Ga. 398, 73 S. E. 368 (murder;
deceased's statements).
Haw. : 1913, Nawelo v. Hamm-Young Co., 21 Haw. 644 (injury by automobile).
Ida. : 1908, Anderson v. Great Northern R. Co., 15 Ida. 513, 99 Pac. 91 (engineer after an
injury). 1909, Wheeler v. Oregon R. & N. Co., 16 Ida. 375, 102 Pac. 347 (here excluded as
opinion).
III. : 1904, Chicago City R. Co. v. Uhter, 212 111. 174, 72 N. E. 195 (arrest of train employees
after an accident, excluded). 1910, Belskis v. Dering Coal Co., 246 III. 62, 92 N. E. 575
(mine injury).
Ind. : 1907, Pittsburg C. C. k St. L. R. Co. v. Haislup, 39 Ind. App. 394, 79 N. E. 1035 (pas-
401
§ 1750 HEARSAY RULE
[Note 3 — continued]
senger ejected). 1908, O'Connor Co. v. Gillaspy, 170 Ind. 428, 83 N. E. 738 (elevator).
1909 Fort Wayne & W. V. T. Co. v. Roudebush, 173 Ind. 57, 88 N. E. 676 (motor^an).
la. : 1905, Rothrock v. Cedar Rapids, 128 la. 252, 103 N. W. 475 (injured person's state-
ment after a fall). 1905, Hutcheis v. Cedar R. & M. C. R. Co., 128 la. 279, 103 N. W.
779 (passenger falling from a car ; model opinion, by McClain, J.). 1906, Christopherson v.
Chicago M. & St. P. R. Co., 135 la. 409, 109 N. W. 1077 (injured person). 1907, Clark v.
Van Vleck, 135 la. 1904, 112 N. W. 648. 1908, Kern v. Des Moines C. R. Co., 141 la. 620,
118 N. W. 451 (stxeet-car injury).
Kan.: 1910, Campbell v. Brown, 81 Kan. 480, 106 Pac. 37 (death by wood alcohol; the
deceased's remarks while drinking, as to where he got it, not admitted). 1914, State ».
Powers, — Kan. — , 139 Pac. 1166 (assault with intent to kill).
Ky.: 1904, Selby v. Com., — Ky. — , 80 S. W. 221 (accused, after a homicide). 1905,
Lexington St. R. Co. v. Strader, — Ky. — , 89 S. W. 158 (motorman). 1906, Louisville &
N. R. Co. V. MoUoy's Adm'x, — Ky. — , 91 S. W. 685 (raikoad injury). 1912, Cincin-
nati N. O. & T. P. R. Co. V. Martin, 146 Ky. 260, 142 S. W. 410 (engineer's statement
after accident).
La.: 1904, State v. Charles, 111 La. 933, 36 So. 29 (deceased in homicide). 1904, State v.
Foley, 113 La. 52, 36 So. 886 (murder; prior cases cited and construed).
Minn. : 1905, State's. WiUiams, 96 Minn. 351, 105 N. W. 265 (deceased in a murder). 1913,
State V. Findling, 123 Minn. 413, 144 N. W. 142 (murder).
Mo. : 1912, Jewell v. Excelsior P. M. Co., 166 Mo. App. 555, 149 S. W. 1045 (injured person
fleeing from an explosion). '
Nebr. : 1905, Lexington v. Fleharty, 74 Nebr. 626, 104 N. W. 1056 (injured person).
N. H.: 1911, Dorr v. Atlantic S. L. R. Co., 76 N. H. 160, 80 Atl. 336 (no fixed period of
time is recognized).
N. J. :, 1905, State v. Laster, 71 N. J. L. 686, 60 Atl. 361 (deceased).
,N. Y.: 1904, Austin s. Bartlett, 178 N. Y. 310, 70 N. E. 855 (statements after a runaway
accident). 1908, People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690 (murder; deceased's
exclamations). 1913, Greener v. General Electric Co., 209 N. Y. 135, 102 N. E. 527 (injured
person after a fall ; here excluded ; but the opinion misunderstands the theory and ignores
the element of time) .
N. D.: 1906, Puis v. Grand Lodge, 13 N. D. 559, 102 N. W. 165 (by one who was ill, as to
having taken horse medicine, admitted). 1911, Gebus v. Minneapolis St. P. & S. S. M. R.
Co., 22 N. D. 29, 132 N. W. 227.
OH. : 1905, Regnier v. Terr., 15 Okl. 652, 82 Pac. 509 (victim of a shooting). 1908, Price v.
State, 1 Okl. Cr. 358, 98 Pac. 447 (homicide). 1910, Hawkins v. U. S., 3 Okl. Cr. 651, 108
Pac. 561 (deceased, after a shooting).
R. I. : 1912, Champlin v. Pawcatuck V. St. R. Co., 33 R. I. 572, 82 Atl. 481.
S. C. : 1904, State ». McDaniel, 68 S. C. 304, 47 S. E. 384 (defendant in homicide). 1904,
State V. Lindsey, 68 S. C. 276, 47 S. E. 389 (wife of the assaulted person). 1904, Wilhams v.
Southern R. Co., 68 S. C. 369, 47 S. E. 706 (person injured on a raih-oad track). 1904,
Nelson v. Georgia C. &N. R. Co., 68 S. C. 462, 47 S. E. 722 (conductor). 1907 State «.
Way, 76 S. C. 91, 56 S. E. 653 (defendant in homicide).
a. D.: 1904, Fallon v. Rapid City, 17 S. D. 570, 97 N. W. 1009 (sidewalk injury). 1909,
Jungworth v. Chicago M. 8s St. P. R. Co., 24 S. D. 342, 123 N. W. 695 (cattle injured on
track; conductor's conversation .with the stock-tender, excluded; careful opinion, by
McCoy, J.).
U. S. : 1904, Guild v. Pringle, 130 Fed. 419, 422, 64 C. C. A. 621 (person injured in the
highway). 1911, American Mfg. Co. v. Bigelow, C. C. A., 188 Fed. 34 (superintendent's
statement to injured employee).
Ut. : 1905, Leach v. Oregon S. L. Co., 29 Utah 285, 8 Pac. 90 (brakeman knoclced off a car).
Va. : 1904, Bowles v. Com., 103 Va. 816, 48 S. E. 527 (deceased). 1908, Blue Ridge L. & P.
Co. V. Price, 108 Va. 662, 62 S. E. 938 (motorman after an accident).
402
EXCEPTIONS : SPONTANEOUS EXCLAMATIONS § 1751
[Note 3 — continued]
Wash. : 1905, Dixon v. Northern P. R. Co., 37 Wash. 310, 79 Pac. 943 (trespasser ejected
from car). 1905, Starr v. ^tna L. Ins. Co.,41 Wash. 199, 83 Pac. 113 (person injured on a
raiboad track). 1909, Henry v. Seattle Electric Co., 55 Wash. 444, 104 Pac. 776 (con-
ductor, after a collision). 1910, Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 Pac.
795 (injury in a shipyard). 1913, State v. Hazzard, 75 Wash. 5, 134 Pac. 514 (murder by
starvation ; the deceased's statements as to the food she was receiving, admitted).
W. Va.: 1904, WiUiams v. Belmont C. & C. Co., 55 W. Va. 84, 46 S. E. 802 (motor-
man). 1905, State v. Woodrow, 58 W. Va. 527, 52 S. E. 545 (murder; accused's
statement).
Wis.: 1905, Titorsky v. Chicago M. & St. P. R. Co., 124 Wis. 243, 102 N. W. 549
(telegraph operator's reply to the injured person). 1906, Johnson v. State, 129 Wis. 146,
108 N. W. 55 (defendant after a homicide).
§ 1751. Knowledge Qualifications.
[Text, p. 2260; add a new paragraph (c) :] ■
(c) By the general principle applicable to these Exceptions to. the Hear-
say rule {ante, § 1424), the declarant must at least not lack the usual testi-
monial qualifications {ante, § 6256) that would be required of him if testifying
on the stand. Which of those qualifications are here to be treated appli-
cable and indispensable ?
(1) Does the disqualification of infancy {ante, §§ 505-509) exclude dec-
larations otherwise admissible? It would seem not; because the principle
of the present Exception obviates the usual sources of untrustworthiness
{ante, § 506) in children's testimony ; because, furthermore, the orthodox
rules for children's testimony are not in themselves meritorious {ante, § 509) ;
and, finally, because the oath-test, which usually underlies the objection to
children's testimony, is wholly inapplicable to them {post, § 1821, § -1828,
notes 3-5).^
' Accord: 1908, Soto v. Terr., 12 Ariz. 36, 94 Pac. 1104 (child of four years; complaint
after an assault, admitted).
1908, Beal-Doyle D. G. Co. v. Carr, 85 Ark. 479, 108 S. W. 1053 (approving the text
above).
1904. Kenney v. State, 45 Tex. Cr. 500, 79 S. W. 570, 817 (good opinion by Hender-
son, J., Davidson, P. J., diss.).
For the cases as to a child's complaint of rape, see post, § 1761, n. 2.
Distinguish the rule for dying declarations, which may well be different (ante, § 1445, n. 1 ) .
(2) Does the disqualification of infamy by conviction of crime {ante, §§ 519-
524) here exclude spontaneous exclamations uttered under the influence of
the res gestae? Considering the peculiar, nature of the present exception,
and the now conceded anachronism of the disqualification by infamy, it
ought not to be extended to apply here.^
2 Accord: 1900, Neeley ■!). State, — Tex. Cr. — , 56 S. W. 625. 1904, Flores v. State;, —
Tex. Cr. — , 79 S. W. 808. 1904, Kenney v. State, — Tex. Cr. — , 79 S. W. 817 (approving
<!he foregoing cases, and distinguishing Long v. State, 10 Tex. App. 186).
By an analogous principle a slave's declarations of this sort were not excluded by his dis-
qualification to testify : 1845, Yeatman v. Hart, 6 Humph. 375 ; 1867, Rogers v. Crain,
30 Tex. 284, 288.
403
§ 1751 HEARSAY RULE
[Text, p. 2260 — contintied]
(3) For similar reasons, the marital disqualification should not exclude
utterances of husband or wife otherwise receivable for each other ; ' for the
' Cases cited ante, § 604, n. 3.
present principle is assumed to override any considerations of interest in the
declarant, and moreover the marital disqualification (ante, § 601) is now an
anachronism; though the marital privilege rests on different grounds, and
would equally exclude extra-judicial utterances.*
* Cases cited post, § 2233.
(4) The disqualification of insanity {ante, § 492) should probably be
treated for the present purpose like that of infancy.^
5 1905, WUson v. State, 49 Tex. Cr. 50, 90 S. W. 312.
Distinguish, however, the rule for dying declarations {ante, § 1445, n. 2).
(5) The oath-capacity is a purely artificial one (post, §§ 1820-1829), and
has no inherent relation to testimonial capacity. It has no place in exclud-
ing extra-judicial declarations forming exceptions to the Hearsay rule {ante,
§ 1362). The close resemblance of its requirements to those of the Excep-
tion for dying declarations {ante, § 1443) and for children's testimony {ante,
§ 1505) will account for the supposition, occasionally found, that those
requirements have some general application to extra-judicial declarations of
the present sort,*
' E. g. the dissenting opinion of Davidson, P. J., in Kenney ». State, Tex., supra, n. 1,
and the treatises therein quoted.
§ 1754. Declaration must Elucidate the Act.
[Note 1; add:]
1908, Hyvonen v. Hector Iron Co., 103 Minn. 331, 115 N. W. 167 (mining accident).
1914, Ferance v. Forestdale Mfg. Co., — R. I. — , 89 Atl. 339 (factory injury).
§ 1755. Declaration must be by the Actor himself ; Bystander's Utterances.
[Note 1; add:]
1911, Pope V. State, 174 Ala. 63, 57 So. 245.
1905, Indianapolis St. R. Co. v. Taylor, 164 Ind. 155, 72 N. E. 1045 (railroad injury; ex-
cluded on the facts).
1907, State v. Howard, 120 La. 311, 45 So. 260 (like State v. Bellard).
[Note 2; add:]
1907, Atlantic C. L. R. Co. v. Crosby, 53 Fla. 400, 43 So. 318.
1907, Kennedy v. Com., — Ky. — , 100 S. W. 242 (child of murdered man).
1905, Baysinger v. Terr., 15 Okl. 428, 82 Pac. 728 (murder).
1911, Cooper v. State, —Tenn. — , 138 S. W. 827 (homicide).
1911, American Mfg. Co. v. Bigelow, C. C. A., 188 Fed. 34 (superintendent's statement to
injured employee).
1910, Cromeenes v. San Pedro L. A. & S. L. R. Co., 37 Utah 475, 109 Pac. 10 (passenger on a
train running over a boy ; one judge difes.).
404
EXCEPTIONS : SPONTANEOUS EXCLAMATIONS § 1761
§ 1756. Declaration must be Contemporaneous.
[Note 5; add:]
Chief Justice Cockburn's article was printed in the Law Journal, 1880, p. 5.
§ 1760. Woman's Complaint of Rape ; History in England.
[Note 4; add:]
England : 1896, R. v. Lillyman, 2 Q. B. 167, 170, 177, 18 Cox Cr. 346 (but here the peculiar
distinction is taken that "we are bound by no authority to support the existing usage of
limiting evidence of the complaint to the bare ^act that a complaint was made ; . . . when
the whole statement is laid before the jury, they are less likely to draw wrong and adverse
inferences, and may sometimes come to the conclusion that what the woman said amounted
to no real complaint of any offence committed by the accused"; yet "it is the duty of
the judge to impress upon the jury in every case that they are not entitled to make use of the
complaint as any evidence whatever of those facts, or for any other purpose than that we
have stated," i. e. "to judge for themselves whether the conduct of the woman was con-
sistent with her testimony on oath given in the witness-box negativing her consent").
1898, R. V. Kiddle, 19 Cox Cr. 77 (cited ante, § 1136, n. 2 ; R. v. Lillyman followed).
1900, R. V. Merry, 19 Cox Cr. 442 (indecent assault upon a child ; a complaint not volun-
teered, but elicited by a question from the mother, held not admissible under R. «. Lilly-
man).
1905, R. V. Osborne, 1 K. B. 551 (indecent assault upon a child of twelve ; a complaint made
in answer to a question by a companion, held admissible on the facts ; but "questions of a
suggestive or leading nature will indeed . . . render it inadmissible").
1907, Chesney v. Newsholme, [1908] P. 301 (immoral acts by a clergyman with a boy ;
the boy's statement to his mother on the same evening, admitted, but not his statement
made the next evening).
1909, Hedges' Case, 3 Cr. App. 262 (complaint 8 days afterwards, received).
1910, Graham's Case, 4 Cr. App. 218 (complaint a month later, received).
For the question whether the complaint is receivable on charges where the woman's
consent is immaterial, see ante, § 1135, n. 1.
Canada : 1906, R. v. Spuzzum, 12 Br. C. 291 (complaint made on the next day, admitted,
in discretion).
1907, R. V. Clarke, 38 N. Br. 11 (certain complaint details here admitted on other
grounds).
1909, R. V. Bowes, 20 Ont. L. R. Ill (carnal knowledge of a child of 7 or 8; statement to
the mother, admitted).
1908, R. V. Dunning, 1 Sask. 391 (complaints made in answer to leading questions, excluded ;
following R. V. Osborne).
§ 1761. Same : American Doctrine.
[Nate 2; add:]
1906, Terr. v. Schilling, 17 Haw. 249, 265 ("the entire conversation" admitted).
1904, Cunningham «. People, 210 111. 410, 71 N. E. 389 ("such complaint is admitted upon
the theory that the statement of the prosecutrix represents the spontaneous expression of
her outraged feelings" ; hence a statement made "in response to questions put to her" —
here, three weeks after the alleged offence — may be excluded).
1905, State v. Andrews, 130 la. 609, 105 N. W. 215 (admissible ; but not citing McMurrin v.
Rigby, and making a distinction between the complaints of a "very young child" and
others). 1911, State v. Novak, 151 la. 536, 132 N. W. 26.
1906, People v. Harris, 144 Mich. 12, 107 N. W. 715 (not decided).
1907, State v. Werner, 16 N. D. 83, 112 N. W. 60 (when made immediately after the crime;
405
§ 1761 HEAESAY RULE
[Note 2 — contimied]
but sanctioning also the use under § 1138, n. 2, ante, where the limitations would be differ-
ent). 1913, State v. Apley, 25 N. D. 298, 141 N. W. 740.
1904, Kenney v. State, — Tex. Cr. — , 79 S. W. 817 (collecting prior cases). 1905, Wiggins
V. State, — Tex. Cr. — , 84 S. W. 821.
[Text, p. 2273, at the end ; add a new paragraph :]
Where the prosecutrix is a child to ; young to be a witness, the statements
should nevertheless be receivable ; * because, although in general a hearsay
declarant must not lack the qualifications of an ordinary witness {ante,
§ 1424), yet the peculiar nature of the present Exception {ante, § 1747)
renders this principle substantially inapplicable to children ; furthermore, the
orthodox common-law limitations as to children's testimonial capacity are
inherently unsound and impractical {ante, § 509) and should not be extended
by analogy.
' Accord: VT79, Brazier's Case, semhle (quoted arde, § 1760, and so understood by Parke,
B., in E. V. Guttridges, 1840, 9 C. & P. 471).
1900, People v. Marrs, 125 Mich. 376, 84 N. W. 284 (cited ante, § 1136, n. 1).
1899, Croomes j). State, 40 Tex. Cr. 672, 51 S. W. 924, 53 S. W. 882.
1904, Kenney v. State, — Tex. Cr. — , 79 S. W. 817 (repudiating Smith v. State, 41 Tex. 352 ;
Davidson, P. J., diss.).
1905,' Wiggins v. State, 47 Tex. Cr. 538, 84 S. W. 821.
1888, Hannon t. State, 70 Wis. 448, 452, 36 N. W. 1 (cited ante, § 1136, n. 1).
Contra: 1905, State v. Andrews, la., semhle (cited supra, n. 2).
1869, Weldon v. State, 32 Ind. 81.
1845, People v. McGee, 1 Denio 19, 22.
But these last two cases, cited ante, § 1138, n. 2, are attributable to the different theory
of rape-complaint there applied. In England, R. v. Nicholas, 2 C. & K. 246 (1846), is
contra, but in England even an adult's statement was inadmissible {ante, § 1750) ; so that
the Court there merely refused to do more for a child's statement than for an adult's.
§ 1770. Verbal Acts; Utterances of Contract, etc.
[Note 1; add:]
1911, Zinsmeister v. Rock Island C. Co., 145 Ky. 25, 139 S. W. 1068 (agent's letters, ex-
cluded).
1905, King v. Bynum, 137 N. C. 491, 49 S. E. 955 (distinguishing testimony directly to the
expressions of negotiation at a sale and testimony to subsequent hearsay statements of
what occurred at the sale).
[Note 3; add:]
1904, People v. Tibbs, 143 Cal. 100, 76 Pac. 904 (the woman's preparations, unknown to
the defendant, excluded).
1912, Hay v. State, 178 Ind. 478, 98 N. E. 712 (seduction ; the woman's preparations for
marriage, not admissible as corroboration).
1908, Cooper v. Bower, 78 Kan. 156, 164, 96 Pac. 59, 794 (the woman's statements that they
were engaged to be married, admissible).
But a seduction should not be evidence of a prior promise of marriage ; the principle of
§ 268, ante, is here out of place.
1906, Wrynn v. Downey, 27 R. I. 454, 63 Atl. 401 (citing other authorities).
406
RULE NOT APPLICABLE § 1777
[Note 4; add:]
1904, Parke & L. Co. v. S. F. Bridge Co., 145 Cal. 534, 78 Pac. 1065, 79 Pac. 71 (certain
letters admitted, as constituting performance).
[Note 5; add:]
1905, Order of U. C. Travellers v. Barnes, 72 Kan. 293, 82 Pac. 1099 (admissible for the
plaintiff, but only with instruction limiting their use to their effect as performance of the
condition precedent).
1906, Paquette «. Prudential Ins. Co., 193 Mass. 215, 79 N. E. 250 ("Having been put in
evidence generally, it was within the discretion of the presiding judge either to submit or
to withhold them from the consideration of the jury").
[Text, p. 2279, 1. 11 ; add a, new note 5a :]
^ Distinguish the report by a third person of such utterances of the defendant, which is
of course mere extra-judicial assertion.
1909, Sheppard v. Austin, 159 Ala. 361, 48 So. 696.
§ 1777. Sundry Applications of the General Principle.
[Note 2, par. 1 ; add :]
1905, Gearty v. City of New York, 183 N. Y. 233, 76 N. E. 12 (contract; a certain letter
from the defendant's agent, not admitted for the defendant).
1909, Johnston v. Spoonheim, 19 N. D. 191, 123 N. W. 830 (conveyance by insolvent parents
to son ; the parents' statement to the notary, at the time of drafting the deed, that ,the son
had demanded pay for his labor and that this conveyance was made to satisfy him, excluded ;
Morgan, C. J., diss.).
Compare the cases on agent's admissions (ante, § 1078).
[Note 3, par. 1 ; add :]
1906, Napier v. Elliott, 146 Ala. 213, 40 So. 752 (grantor's declaration when signing and
acknowledging a deed, admitted on the question of delivery).
1904, Dawson v. Waggaman, 23 D. C._ App. 428 (donatio causa mortis).
1910, Elliott V. Western Coal & M. Co., 243 111. 614, 90 N. E. 1104 (gift in 1889, not allowed
to be qualified as an advancement by the testator's written statement in 1892).
1§05, Renshaw v. Dignan, 128 la. 722, 105 N. W. 209 (deUvery of a deed).
1906, Hill's Guardian v. Hill, 122 Ky. 681, 92 S. W. 924 (advancements).
Compare also the cases cited post, § 1782 (testator's declarations).
But for an alleged advancement to a child (in the usual case, a note from the child to the
parent), the parent's declarations, even though made after the delivery of the money may
be nevertheless receivable as admissions (ante, § 1081), offered against his estate, and this
distinction is emphasized in Missouri.
1904, Strode v. Beall, 105 Mo. App. 495, 79 S. W. 1019 (citing cases).
[Note 5; add:]
1904, Quick v. Cotman, 124 la. 102, 99 N. W. 301.
[Note 6, par. 1 ; add :]
1907, Goyette v. Keenan, 196 Mass. 416, 82 N. E. 427 (a deed described "land formerly
belonging to H. B., now or lately of one W." ; declarations of W. "To show the character
of his occupation" etc., the dispute being whether the description covered the land in ques-
tion, were held not improperly excluded because their tenor did not appear).
407
§ 1777 HEARSAY RULE
[Note 8; add:]
1903, Rulofson v. Billings, 140 Cal. 452, 74 Pac. 35 (action on a contract by defendant to
adopt and support plaintiff ; defendant's declarations that he was only guardian, excluded,
the res gestae not including the whole time of living together).
1905, Engel v. Conti, 78 Conn. 351, 62 Atl. 210 (separation of wife and husband; their
conversation while in the same room, admitted in explanation of his acts).
1906, Fitzgerald v. Benner, 219 111. 485, 76 N. E. 709 (delay in performance of a contract ;
the contractor's agent's expressions of readiness to perform, admitted).
1906, Chapman v. Pendleton, 26 R. I. 573, 59 Atl. 928 (surety's agreement; subsequent
declarations excluded).
§ 1778. Possessor's Declarations, in Adverse Possession.
[NoteS; add:]
1910, Makekau v. Kane, 20 Haw. 203, 209 (above requirement applied).
[Note 4l ; add :]
1905, Henry v. Brown, 143 Ala. 446, 39 So. 325.
1905, Seawell v. Young, 77 Ark. 309, 91 S. W. 544 (ancestor's declarations of claim in pos-
session, admitted, following Knight v. Knight, 111., infra). 1912, Butler v. Hines, 101
Ark. 409, 1?2 S. W. 509 (declarations after seven years' occupation, admitted, as evidencing
lack of adverseness in prior occupation).
1863, Draper v. Douglass, 23 Cal. 347 (location of a mining-claim ; the miner's declarations,
while working in the vicinity, admitted in his favor). 1866, Sneed v. Woodward, 30 Cal.
430, 434 (issue as to the plaintiff's acquiescence in an erroneous location so as to be es-
topped ; their declarations at the time, received in their favor). 1871, Phelps v. McGloan,
42 Cal. 298, 302.
1909, Bowman v. Owens, 133 Ga. 49, 65 S. E. 156 (admitted, under Code 1895, § 5180).
1911, Rich V. Naffziger, 248 111. 455, 94 N.E.I.
1905, Emmet v. Perry, 100 Me. 139, 60 Atl. 872 (defendant's grantor's declarations of claim,
admitted).
1903, Whitaker v. Whitaker, 175 Mo. 1, 74 S. W. 1029. 1905, Swope v. Ward. 185 Mo.
3l6, 84 S. W. 895 (but declarations naming the source of an alleged title are excluded ;
this seems erroneous). 1906, Farmers' Bank v. Barbee, 198 Mo. 465, 95 S. W. 225 (Martin
». Bonsack followed). 1914, Heynbrock «. Hormann, — Mo. — ,164 S. W. 547 (Bank
V. Barbee followed).
[Note 5; add:]
1906, Bivings v. Gosnell, 141 N. C. 341, 53 S. E. 861 (declarations of M., at the time of rent-
ing, assented to by the tenant, that he was acting for the plaintiff, admitted).
1904, Murphy v. Dafoe, 18 S. D. 42, 99 N. W. 86 (declarations of an agent in possession
for M., admitted).
1906, Wade v. McDougle, 59 W. Va. 113, 52 S. E. 1026 (declarations of C. and L., while
cutting, etc., that they were doing so under N. the plaintiff, admitted).
[Note 7 ; add :]
1909, McMahon v. Chicago City R. Co., 239 111. 334, 88 N. E. 223 (injury in a scuffle
between a car-conductor and plaintiff's husband ; the conversation and dispute between the
latter two was admitted as part of the res gestm).
1904, McDonald v. Bayha, 93 Minn. 139, 100 N. W. 679 (statements of an agent in posses-
sion).
[Note 10, under Accord; add, ;]
1909, Hassam v. Safford Lumber Co., 82 Vt. 444, 74 Atl. 197.
408
RULE NOT APPLICABLE § 1779
§ 1779. Possessor's Declarations, as aiding the Presumption of Owner-
ship, etc.
[Note 1 ; add :]
1906, Farmers' Bank v. Barbee, 198 Mo. 465, 95 S. W. 225 (plaintiff claiming under A, one
of three children and heirs of B ; A's assertions of a grant to himself from the other children,
not admitted in favor of plaintiff claiming under A ; following Tmner v. Belden, Mo., infra,
n. 2).
[Note 2; add:]
1905, Swope«. Ward, 185 Mo. 316, 84 S. W. 895 (Turner v. Belden approved; Barrett v.
Donnelly, supra, n. 1, said not to be in conflict).
[Note 3; add:]
1905, Vagts V. Utman, 125 Wis. 265, 104 N. W. 88 (title to a horse ; rule held not applicable
on the facts).
[Note 4:; add:]
1909, State ex rel. Dykes v. Hencken, 8th C. C. A., 174 Fed. 624 (property seized by creditors
of M., T. being in possession ; T.'s declarations of disclaim, not admitted in M.'s favor
because T., though plaintiff's agent, was not agent to make admissions ; no authority cited).
[Note 5; addi]
Accord: 1905, Griswold v. Nichols, 126 Wis. 401, 105 N. W. 815 (sale by a son to a father in
fraud of creditors ; the father's declarations in possession, admitted in his favor, following
Roebke v. Andrews, supra, n. 1).
Contra : 1906, Samaha v. Mason, 27 D. C. App. 470, 477 (replevin for ru^s claimed by the
defendant by purchase from H. who purchased from plaintiff ; the defendant's statements
as to the ownership of the rugs at the time of their seizure by replevin writ, excluded, not
being merely explanatory of possession).
[Note 6; add:]
1906, Bakers. Drake, 148 Ala. 513,41 So. 845, sembk (excluded). 1909, Cohn & Goldberg
L. Co. V. Robbins, 169 Ala. 289, 48 So. 853 (injury caused by defendant's wagon driven by
H. ; H.'s statement, after the accident, replying to the. plaintiff's inquiry whose wagon
it was, that it was the defendants', not admitted as evidence of ownership ; McClellan, J.,
diss. ; the opinion leaves undissipated the confusion in the decisions of this State).
1905, Terry v. Clark, 76 Ark. 435, 88 S. W. 987 (creditor claiming furniture against the
debtor's wife; the debtor's declarations of ownership, not adraitted for the creditor).
1905, Smiley v. Padgett, 123 Ga. 39, 50 S. E. 927 (execution under a lien by P. on goods
possessed by H., but now claimed by S. ; H.'s declarations of ownership, in possession, ad-
mitted for P.).
1913, Freda v. Tishbein, 174 Mich. 391, 140 N. W. 502 (creditor replevying goods in T.'s
possession, as against T.'s widow ; T.'s declarations not admitted for plaintiff, ownership
and not possession being the sole issue).
1904, Vermillion v. Parsons, 101 Mo. App. 602, 73 S. W. 994, 107 Mo. App. 192, 80 S. W.
916 (husband's declarations of claim, not admitted for the creditor against the wife claim-
ing by prior title).
1905, Chan v. Slater, 33 Mont. 155, 82 Pac. 657 (attachment on property of the husband,
claimed by the plaintiff wife ; the husband's declarations of claim in possession, admitted
for the creditor).
1912, Wipperman Merc. Co. v. Robbins, 23 N. D. 208, 135 N. W. 785 (vendor suing for
goods attached by the creditor of the vendee F. ; declarations by B., assented to by F. in
possession, admitted for the defendant ; citing the above text).
409
§ 1779 HEARSAY RULE
[Note 6 — continued]
1904, McKnight v. U. S., 130 Fed. 659, 667, 65 C. C. A. 37 (action for cattle of Josephine
H., wife of John H., seized by defendant on attachment against John H. ; the latter's decla-
rations of claim in possession, not admitted for the defendant; reasons obscure).
[Note 8; add:]
1896, Linton v. Sutherland, 40 N. Sc. 149 (judgment debtor's admissions, after date of a deed
to defendant, that the deed was meant as a mortgage only, not admitted against defendant).
1905, Ard V. Crittenden, — Ala. — , 39 So. 675 (mortgagor's statements to third persons,
at unspecified times, not admitted).
1900, Produce Exchange T. Co. v. Bieberbach, 176 Mass. 577, 586, 58 N. E. 162 (owner-
ship of notes by a bank ; entries in the bank's books admissible as "acts of ownership com-
petent to prove title in the bank").
Mo. : compare also the cases cited ante, § 1779, notes 1 and 2.
1905, Piedmont Sav. Bank v. Levy, 138 N. C. 274, 50 S. E. 657 (trustee in bankruptcy,
allowed to prove declarations of the debtor in possession but after assignment, to evidence
the buyer's knowledge and the character of the debtor's possession ; following Askew v.
Reynolds, supra).
[Note 9 ; add, under Accord:]
1906, Holman «. Clark, 148 Ala. 286, 41 So. 765 (defendant claiming under a mortgage
prior to plaintiff's; debtor's declarations of claim in possession, admitted for defendant).
1909, Johnston v. Spoonheim, 19 N. D. 191, 123 N. W. 830 (cited more fully arUe, § 1777,
n. 2).
Compare with the foregoing cases those cited ante, § 1086, n. 3.
§ 1781. Declai'ations by Accused found with Stolen Goods.
[Note 4; add:]
1902, R. V. Higgins, 35 N. Br. 18, 28 (R. v. Ferguson cited with approval).
1906, Lanier v. State, 126 Ga. 586, 55 S. E. 496 (accused's explanatory statement while in
possession, admitted).
1908, Mason v. State, 171 Ind. 78, 85 N. E. 776 (accused's efforts to restore the missing
property for identification by the owner, excluded).
1905, State v. Conroy, 126 la. 472, 102 N. W. 417 (statements explaining the possession of
a stolen revolver, made before accusation, admitted).
1904, State v. Simon, 70 N. J. L. 407, 57 Atl. 1016 (knowing receipt of stolen goods ; defen-
dant's conversation with the seller, admitted).
1904, Smith v. Terr., 14 Okl. 518, 79 Pac. 214 (statements on arrest when not in possession,
excluded).
1905, State v. White, 77 Vt. 241, 59 Atl. 829 (larceny of a team; the defendant's declara-
tions, before knowledge of suspicion or search, that the team was not his own but hired,
admitted).
§ 1782. Declarations affecting Revocation of a WiU.
[Note 1, par. 1; add:]
1911, Blackett v. Ziegler, 153 la. 344, 133 N. W. 901.
§ 1784. Declarations as to Domicil.
[Note 2; add:]
1911, Madison v. Guilford, 85 Conn. 55, 81 Atl. 1046.
1904, Knox v. Montville, 98 Me. 493, 57 Atl. 792 (pauper settlement; declarations, while
410
RULE NOT APPLICABLE § 1802
[Note 2 — oontinvsd]
living in M., as to an intent to return to B., excluded ; the declarations must "accompany
acts which they explain"). 1913, Holyoke ». Holyoke's Estate, 110 Me. 469, 87 Atl. 40
(examining prior cases).
1906, Jericho v. Huntington, — Vt. — , 65 Atl. 87 (pauper residence).
1908, Barnard v. U. S., 9th C. C. A., 162 Fed. 618 (perjury in homestead land entries ;
the issue being whether W. resided on the homestead from 1898 to 1904, W.'s declarations
of intent while elsewhere in 1901 and 1903 were admitted).
§ 1789. Knowledge, Belief, etc., evidenced by Receipt of Information, etc.
[Text, p. 2314 ; at the end of the quotations, add a new note 1 :]
' The following case neatly illustrates the distinction : 1912, Hurst v. State, 101 Miss.
402, 58 So. 206 (threats as an excuse for carrying a concealed weapon ; is the belief of de-
fendant that M. had :threatened defendant's life the material thing under the law ? Or
the fact that M. had so threatened ? In the former solution, the report as made to defen-
dant becomes admissible on the present principle ; but pot in the latter solution).
§ 1795. The Res Gestae Phrase; History.
[Text, p. 2318, 1. 10 of the quotation; add a note 1 :]
An earUer instance than this has been found : 1637, Ship Money Case, 3 How. St. Tr. 988
(Mr. Holborne, arguing, refers to the truth of an historian "for res gestw as this").
§ 1800. Jtiror having previous PrivateKnowledge, etc.
[NoU2; add:]
Ind. St. 1905, p. 584, § 262 (re-enacts the foregoing statute, adding : "If the Court deem any
such evidence material to the cause," a new jury may be summoned).
1904, Douglass v. Agne, 125 la. 67, 99 N. W. 550.
§ 1802. Jurors not to receive Evidence out of Court.
[Note 3, par. 1; add:]
1913, People v. Auerbach, 176 Mich. 23, 141 N. W. 869 (following People v. Hull; in the
defendant's absence, no testimony can be given).
1903, State v. Landry, 29 Mont. 218, 74 Pac. 418 (verdict set aside because certain spec-
tators laughed and demonstrated their opinion of the success of an experiment; this is
absurd).
[Note 3, par. 2 ; add :]
1905, Underwood v. Com., 119 Ky. 384, 84 S. W. 310.
Of course the present principle does not apply where it is the defendant himself who vol-
untarily testifies and afterwards objects : Underwood v. Com., supra.
[Note 5; add:]
1903, State v. Mortensen, 26 Utah 310, 73 Pac. 562, 633 (shower pointing out the places
mentioned in the evidence ; the dissenting opinion exhibits a morbid regard for petty tech-
nicalities irrespective of justice).
[Note 6, par. 1; add:]
Accord: 1904, Wilson v. Harnette, 32 Colo. 172, 175 Pac. 395 (good opinion by Steele, J.).
Contra: 1904, O'Berry v. State, 47 Fla. 75, 36 So. 440 (larceny of cattle; a view of the
411
§ 1S02 HEARSAY RULE
[Note 6 — continued]
cattle was ordered and witnesses allowed to identify them on the view as the cattle referred '
to in their testimony ; the Court on appeal doubted the propriety of this ; but the doubt is
ill-founded, for the witnesses acted virtually as showers, and their pointing out was indis-
pensable to the eflBciency of the view).
§ 1803. Defendant's Presence at a View in a Criminal Case.
[Note 2; add:]
1904, Elias v. Terr., 9 Ariz. 1, 76 Pac. 605 (view had on motion of defendant, without a
claim of his desire to be present, held proper).
1911, Starr v. State, 5 Okl. Cr. 440, 115 Pac. 356 (defendant's request for a view is a waiver
of the right to be present ; whether he has such a right in other cases, not decided, but "the
safe practice is to permit it" ; the right may be waived).
1903, State v. Landry, 29 Mont. 218, 74 Pac. 418 (view at defendant's request ; "the defen-
dant must be present")-
1903, State «. Mortensen, 27 Utah 16, 74 Pac. 120, 350 (supplementary opinions on motion
for new trial).
§ 1807. Coimsel ; Improper Statements of Fact in Argument ; Applications
of the Principle, etc.
[Note 1, par. 1 ; add:] /
1910, Gaston v. State, 95 Ark. 233, 128 S. W. 1033.
1912, Pelham & H. R. Co. v. ElUott, 11 Ga. App. 621, 76 S. E. 1062 (quotmg and empha-
sizing the opinion of Nisbet, J., in Mitchum v. State, quoted supra, § 1806).
1910, People v. McMahon, 224 111. 45, 91 N. E. 104 (explanation of the lack of certain
testimony). 1913, Appel v. Chicago City R. Co., 259 111. 561, 102 N. E. 1021.
1905, Smith v. State, 165 Ind. 180, 74 N. E. 983.
1913, State v. Wilson, — la. — , 141 N. W. 337, 347.
1910, Turpin v. Com., 140 Ky. 294, 130 S. W. 1086 (counsel's statement that "one man on
this jury has been fixed," held improper).
1909, People v. Nichols, 159 Mich., 355, 124 N. W. 25.
1906, State s.-Wigger, 196 Mo. 90, 93 S. W. 390.
1913, Kambour ». Boston & Maine R. Co., — N. H. — , 86 Atl. 624.
1907, Burns v. State, 75 Oh. 407, 79 N. E. 929.
1909, O'Barr v. U. S., 3 Okl. Cr. 319, 105 Pac. 988.
1904, Bobbins v. State, 47 Tex. Cr. 312, 83 S. W. 690.
1905, Union Pacific R. Co. v. Field, 137 Fed. 14, 69 C. C. A. 536 (here the rule is pushed to
a ludicrous extreme of technicality).
1914, Fadden v. McKinney, — Vt. — , 89 Atl. 351.
As to the opening state.ment by counsel, see post, § 1808, n. 1.
[Note 3; add:]
1914, Frank v. State, 141 Ga. 243, 80 S.E. 1016 (a curious case, in which the question arose
over the citation in argument of the Durrant and the Oscar Wilde cases).
1EI13, In re Boston Elevated R. Co., — Mass. — , 101 N. E. 365 (counsel allowed to argue as
to possible explanations of a conviction of crime used to discredit a witness).
1907, State v. Blodgett, 50 Or. 329, 92 Pac. 820 (allusions to other recent murders).
1910, State v. Duncan, 86 S. C. 370, 68 S. E. 684 (prevalence of homicide in the neighbor-
hood).
1908, State ji. Pu-key, 22 S. D. 550, 118 N. W. 1042.
412
APPLIED TO JURORS, COUNSEL, JUDGE, ETC. § 1810
[Note 4, par. 1 ; add:]
1905, Chicago Union T. Co. v. O'Brien, 219 III. 303, 76 N. E. 341.
1905, Osburn v. State, 164 Ind. 262, 73 N. E. 601. 1911, Wilson v. State, 175 Ind. 458,
93 N. E. 609.
1905, Seely v. Manhattan L. Ins. Co., 73 N. H. 339, 61 Atl. 585, 587.
§ 1808. Improper Statements in OfEering Evidence, etc.
[Note 1, par. 1; add:]
1906, HoUand v. Williams, 126 Ga. 617, 55 S. E. 1023.
1909, Gossett v. State, 6 Ga. App. 439, 65 S. E. 162 (opening address).
1904, Henrietta Coal Co. v. Campbell, 211 111. 216, 71 N. E. 863 (the jury's withdrawal
is in the trial Com-t's discretion). 1906, Chicago & S. L. R. Co. v. Mines, 221 111. 448,
77 N. E. 898. 1906, Chicago C. R. Co. v. Gregory, 221 111. 591, 77 N. E. 1112.
[Note 1, par. 2; add:]
See fiu:ther example of treatment in the following : 1910, Com. v. Howard, 205 Mass. 128,
91 N. E. 397.
In this part of a counsel's address, the rule of § 1807, ante, has little application ; the situa^
tion should rather be treated from the point of view of the rule for conditional relevancy
(post, § 1871). In the following case the dissenting opinion of Haight, J., expresses a just
indignation at the over-strict application of the present rule to such a case, and exposes
the abuses to which it leads : 1906, People v. Wolf, 183 N. Y. 464, 76 N. E. 592.
[Note 2, par-. 1 ; add :]
1904, Burks v. State, 72 Ark. 461, 82 S. W. 490.
1904, People v. Wright, 144 Cal. 161, 77 Pac. 877. 1904, People v. Perry, 144 Cal. 748,
78 Pac. 284.
1904, Streeter v. Marshalltown, 123 la. 449, 99 N. W. 114.
1909, Louisville & N. R. Co. v. Payne, 133 Ky. 539, 118 S. W. 352.
1912, Thomas v. Byron Tp., 168 Mich. 593, 134 N. W. 1021.
1909, State v. Rhys, 40 Mont. 131, 105 Pac. 494.
1905, NickoUzack v. State, 75 Nebr. 27, 105 N. W. 895.
1903, Batchelder v. Manchester R. Co., 72 N. H. 329, 56 Atl. 752 (good opinion, by Chase, J.).
1909, Connecticut Power Co. v. Dickinson, 75 N. H. 353, 74 Atl. 585 (careful opinion, by
Walker, J., drawing the line).
1904, People v. Davey, 179 N. Y. 345, 72 N. E. 244.
1908, New York Life Ins. Co. v. Rankin, 8th C. C. A., 162 Fed. 103, 109.
1908, Dungan v. State, 135 Wis. 151, 115 N. W. 350 (good opinion by Dodge, J.).
§ 1810. Hearsay Rule applicable to Interpreter.
[Note 1, par. 1; add:]
1904, People v. Lewandowski, 143 Cal. 574, 77 Pac. 467 (official certified transcript of testi-
mony delivered through an interpreter, and taken according to P. C. § 686, cited ante,
§ 1411, admitted).
1904, People v. Jan John, 144 Cal. 284, 77 Pa«. 950 (former ruling supra in this case aflBrmed).
1905, State v. Williams, 28 Nev. 395, 82 Pac. 353.
1906, State v. Banusik, — N. J. L. — , 64 Atl. 994 (interpreter called to state the correctness
of his interpretation of a confession written out and signed before a magistrate; held
sufficient).
1909, Ching Lum v. Lam Man Ben, 19 Haw. 363 (interpreter out of the jurisdiction ; held
not admissible without a showing that no other person qualified to report the testimony
was available; is the learned Court correct in stating that there is at the first trial no
413
§ 1810 PROPHYLACTIC RULES
[Note 1 — continued]
opportunity to cross-examine the interpreter as to the correctness of his translation ? In-
Terr. v. Kawano, 20 Haw. 469, cited ante, § 1393, the same Com't declared that the right is
equally applicable to the interpreter when on the stand).
1911, Terr. v. Kawano, 20 Haw. 469 (transcript of former interpreted testimony, excluded,
the interpreter being available).
[Note 2, par. 1; add:]
1869, State v. Noyes, 36 Conn. 80 (a witness not allowed to be contradicted by L., who
had had a conversation with him through an interpreter, without calling the interpreter,
who was here the agent of L. only).
1908, Spencer v. Com., — Ky. — , 107 S. W. 3^. \
1904, State v. Rogers, 31 Mont. 1, 77 Pac. 293.
Conversely, if the interpreter himself testifies on the stand, it is immaterial whether the
party made him agent to interpret :
1909, People v. Randazzio, 194 N. Y. 147, 87 N. E. 112.
On the same principle, an interpreted statement may be used against a witness (not a party-
opponent) as a self-contradiction, without calling the interpreter, where the witness, by
selecting his interpreter, virtually made him his agent to speak, or otherwise adopted the
interpreter's statement.
1905, Davis v. First Nat'l Bank, 6 Ind. T. 124, 89 S. W. 1016 (affidavit made through an
interpreter out of court, used to contradict the witness without calling the interpreter).
§ 1815. The Oath; ffistory.
[Note 1, 1. 3 from the end ; add:]
1903, T. R. White, Oaths in Judicial Proceedings, American Law Register, New Series.
XLII, 372.
Bateson, Borough Customs, II, Introduction, pp. 32-34 (Selden Society's Pub., XXI, 1908.
[Note 2; add:]
An example of the survival of this conclusive purgatorial oath of the party is probably seen
in the traditional rule, observed still by some Courts, for making the respondent's sworn
answers concliisive in contempt proceedings; this rule, has been repudiated by the Federal
Supreme Court : 1906, U. S. v. Shipp, 203 U. S. 663, 27 Sup. 166 (interesting opinion by
Holmes, J.).
1906, Municipal Court of Chicago, Memorandum of Cottrell, J. (privately printed ; col-
lecting the authorities ; now printed in 9 Illinois Law Review).
Note in 22 Harvard Law Review, 379.
[Text, p. 2348, 1. 3 from below ; add a new hote 3 :]
A full examination of this period is made in Professor White's learned article, cited supra,
n. 1.
§ 1816. Theory of the Oath.
[Text, p. 2349, after the quotations; add:]
1826, Christopher North, Noctes Ambrosianse, XXII : "English Opium-Eater : Mr. Hogg,
I never could see any sufficient reason why, in a civilized and Christian country, an oath
should be administered even to a witness in a court of justice. Without any formula.
Truth is felt to be sacred; nor will any words weigh — Shepherd: You're for upsettin'
the haill frame o' ceevil society, sir, and bringing back on this kintra a' the horrors o' the
French Revolution. The power o' an oath lies, no in the Reason, but in the Imagination.
414
OATH § 181S
[Text, p. 2349 — contintied]
Reason tells that simple affirmation or denial should be eneuch atween man and man.
But Reason canna bind ; or, if she do. Passion snaps the chain . But Imagination can
bind ; for she calls on her Flamin' Ministers, — the Fears ; — they palsy-strike the arm
that would disobey the pledged lips ; — and thus oaths are as dreadfu' as Erebus and the
gates o' hell."
§ 1817. Nature of the BeUef.
[Note 2; add:]
1&09, Pumphrey v. State, 84 Nebr. 636, 122 N. W. 19.
[Note 3; add:]
1914, State v. Pitt, — N. C. — , 80 S. E. 1060.
§ 1818. Form of the Oath.
[Note 2; add:]
Therefore, a?i2//orm' suffices which actually binds the particular witness, even if it varies
from the orthodox form: 1913, R. v. Curry, N. Sc. S. C, 12 D. L. R. 13 (perjury; the
defendant had been sworn "by holding up his right hand without being asked whether he
had any objection to being sworn in the regular way," and no Bible was used ; held by
two judges, that "a good and valid oath could only be taken by the witness touching or
kissing the Book," that no statute had changed this, and that for a Christian the form
actually used was not valid ; Graham, E. J., in an elaborate opinion learnedly examines the
history of oaths ; it is a pity that neither of these opinions offers any words of criticism for the
effete and nonsensical law which punishes judicial perjury only when it is committed ac-
cording to narrow formalities ; herein our law remains grossly and disgracefully inept for
its purposes; Russell, J., dissenting, mildly terms the result "the extreme of drollery";
Drysdale, J., also dissenting, the Court was equally divided, and the perjurer was punished
after all).
[Note 3, par. 1, as to an iifUerpreter's oath; add:]
The following statutes belong here :
Conn. St. 1909, c. 49, p. 962, May 13 (form of oath for interpreter, prescribed).
Mo. St. 1913, p. 225, Mar. 25 (grand jury interpreter shall be sworn "to correctly interpret
all questions to the witness into his language and all the witnesses' answers into English").
N. Y. St. 1909, c. 65, p. 24, Feb. 19 (interpreter's oath of office in Kings Co. Surrogate court ;
to be C. C. P. § 2513a).
[Note 3, par. 1, as to kissing the hook; add:]
England has by statute abolished the practice (Oaths Act, 1909, quoted post, § 1828).
[Nate 3, par. 2 ; add :]
1904, R. V. Lai Ping, 11 Br. C. 102 (oath to Chinese by burning a piece of paper on which
the witness had written his name, etc., held to be the established practice).
1905, State v. Davis, 186 Mo. 533, 85 S. W. 354 (Chinese).
[Text, p. 2353, 1. 2 from below ; after "subjectively," add a new note 3a :]
^° The witness therefore mvM not he forced to take an inapplicable form of oath after the
propriety of another form appears ; here his own declaration as to his belief and the binding
form will usually suffice, but the trial judge should determine.
1912, R. V. Lee Tuck, 4 Alta. 388 (the witness, a Chinese, declared that he was a Christian
415
§ 1818 OATH
[Text, p. 2353 — continued]
and wished to be sworn upon the Bible ; but the trial judge ordered the ceremony of burn-
ing the paper to be used ; held, error, on the facts).
[Note 4 ; add, under Contra :]
19111 State V. Browning, 153 la. 37, 133 N. W. 330 (Jew).
§ 1819. Time of Administration and Objection.
[Note 2 ; add, under Accord :]
1852, Birch v. Somerville, 2 Ir. C. L. R. 243 (a peer having testified without a legal oath,
the party calling him and not objecting was held to have waived).
1882, Richards v. Hugh, 51 L. J. Q. B. 361 (witness deposing on affirmation, without oath;
a party not objecting at the time, held to have waived).
1888, Smith v. State, 81 Ga. 480, 8 S. E. 187. 1905, Rhodes v. State, 122 Ga. 568, 50 S. E.
361 (after verdict). 1905, Southern R. Co. v. Ellis, 123 Ga. 614, 61 S. E. 594.
1859, Slauter v. Whitelock, 12 Ind. 338 ("If it was known before the jury retired, the mis-
take could have been corrected by swearing the witness and rehearing the evidence" ; fail-
ure to make a motion on discovery "would amount to an acquiescence").
1904, State v. Smith, 124 la. 334, 100 N. W. 40, semble (a failure to object to an inadvertent
omission of the oath is a waiver).
1833, Cady v. Norton, 14 Pick. 236 ("The defendant, knowing that the witness had not been
sworn, before the cause went to the jury, without giving notice thereof to the Court or
taking an exception, has waived his right to except, after a verdict").
1889, State v. Hope, 100 Mo. 347, 13 S. W. 490 ("An oath may be waived . . . either
expressly, or by going forward in the matter without inquiry or objection").
1906, People v. McAdoo, 184 N. Y. 304, 77 N. E. 260 (police-commissioner's hearing, upon
three charges ; a witness having inadvertently failed to take oath on a recall to speak to
one of the charges, the defendant's knowing failure to object, and his cross-examination of
the witness, held a waiver).
1895, Moore v. State, 96 Tenn. 209, 33 S. W. 1046 (after counsel has cross-examined, "hav-
ing thus gone forward without inquiry or objection," there is an implied waiver).
1893, Goldsmith v. State, 32 Tex. Cr. 112, 22 S. W. 405 (on a motion for new trial it is too
]ate to raise the question).
[Note 2; add, under Contra:]
1904, Lo Toon v. Terr., 16 Haw. 351, 356, semble (but here the presumption of an interpreter
having been duly sworn was applied).
1829, Hawks v. Baker, 6 Greenl. 72 (omission not discovered till after verdict; held, no
waiver, and a new trial granted ; leading opinion, by Mellen, C. J. ; its fallacy lies in the
assumption that in administering the oath "the counsel for the opposite party has no
concern with the transaction" ; this is contrary to the fundamental principle, arvte, § 18,
by which the opponent must watch for all violations of the rules of evidence if he cares to
take advantage of them).
1905, State v. Taylor, 57 W. Va. 228, 50 S. E. 247 (even after verdict; this is absurd and
pernicious).
[Note 3, par. 1 ; add :]
Accord: 1905, Curtis v. Lehmann, 115 La. 40, 38 So. 887 (where the oath is taken in the
usual form without objection, that form will be presumed to be the binding one).
[Note 4:; add:]
1898, People v. Board of Police Com'rs, 155 N. Y. 40, 49 N. E. 257 (hearing before a police
commissioner ; the commissioner intentionally omitted to swear any of the witnesses, erro-
416
OATH § 1821
[Note 4 — continued]
neously believing that his power to act needed not to be based on swprn testimony ; the
omission was held to invalidate the decision).
[Note 4 ; add a new paragraph :] '
Swearing the witness, and causing him to re-testify before close of testimony, cm'es the
irregularity : 1905, Southern E. Co. v. Ellis, 123 Ga. 614, 51 S. E. 594 (on being sworn, to
cure the error, the witness may merely state that what he had testified was true). 1905,
State V. Exum, 138 N. C. 599, 50 S. E. 283.
§ 1820. Mode of Ascertainins Capacity.
[Note 1; add:]
1909, Pumphrey v. State, 84 Nebr. 636, 122 N. W. 19 (a Japanese).
[Note 2, par. 1, at the end; add:]
and in Young v. State, 122 Ga. 725, 50 S. E. 946 (1905), it is held that the judge cannot
decline to examine a child, on demand by the party objecting; but this seems a pedantic,
interference with the trial Court's discretion. -^
Contra : 1909, Simmons v. State, 158 Ala. 8, 48 So. 606 (the trial judge's discretion con-
trols, as to conducting the examination himself, or letting counsel conduct it).
[iVofelO, 1. 7; add:]
Compare also § 2214, post (privilege as to theological belief).
§ 1821. Capacity of Infants.
[Note 2; add:]
1905, Freasier v. State, — Tex. Cr. — , 84 S> W. 360.
[NoU^; add:]
1904, Landthrift v. State, 140 Ala. 114, 37 So. 287 (rape; a child of eleven held qualified
on the facts).
1912, Lassiter s. State, 64 Fla. 337, 59 So. 894.
1907, State v. Labriola, 75 N. J. L. 483, 67 Atl. 386.
[Note 4; add:]
1907, R. V. Armstrong, 15 Ont. L. R. 47 (child of 12).
[Note 6, par. 1 ; add:]
1906, Jones v. State, 145 Ala. 51, 40 So. 947 (a girl who had been to church and Sunday
school, and thought that, if she lied, God could put her in jail, excluded).
1906, Gordon ». State, 147 Ala. 42, 41 So. 847 (child of twelve, admitted, though she did
not "know the nature of a judicial oath").
1910, Hart ». State, — Ark. — , 124 S. W. 781 ("Do you know what you mean when you
hold up your hand and take the oath?" "Yes, sir; tell the truth." "If you was not to
tell the truth, what would be done to you ? " "I don't know, sir." "Would it be wrong ? "
"Yes, sir"; this was held not to have enough theology in it; McCuUoch, J., diss., justly
terms the decision "a backward step").
1906, Young v State, 125 Ga. 584, 54 S. E. 82 (a child of twelve, who did not know what
is "the sanctity of an oath," but otherwise was theologically fit, admitted). 1911, Berry .».
State, 9 Ga. App. 868, 72 S. E. 433 (sensible opinion by Russell, J.).
1907, State v. Meyer, 135 la. 507, 113 N. W. 322. '
1905, Com. f. Furman, 211 Pa. 549, 60 Atl. 1089 (good example of a liberal ruling).
417
§ 1821 OATH
[Text, p. 2359; after par. (6) add:]
An example of the sound and sensible way to ascertain a child's capacity
is found in the following judicial anecdote : '
1908, Hon. E. J. Sherman, Justice of the Superior Court of Massachusetts, in "Recollections
of a Long Life," p. 160 : " A case was being tried before me against the Boston Elevated
Railroad, and a little boy, perhaps seven years old, was called as a witness. The counsel
for the defence objected to his being used as a witness, as he was too young to understand
and appreciate an oath, and asked the court to examine him and ascertain that fact. The
boy looked frightened and as if he was about to cry. He took the witness stand dose be-
side the bench. His name was John . I said to him in a low voice, as if talking-
confidently, ' John, do you play base-ball ? ' He replied, ' Yes, Judge.' He was a
little short fellow, and I said, ' I guess you play short stop.' ' You are right, Judge,'
replied Johimie.
" By this time all disposition to be frightened or cry had disappeared. I then asked him
about his school, etc., and he showed unusual brightness. I remarked, ' This boy will
do, he is all right.'
" He made one of the best witnesses called in the case. If I had said to him in a stern
voice, ' Do you understand the nature of an oath ? What will happen to you if you tell a
lie ? ' as is sometimes asked in like cases, the boy would have broken down in a crying
spell."
[Noted; add:]
1904, North Texas C. Co. v. Bostick, 98 Tex. 239, 83 S. W. 12 (a boy nine years old was
instructed by counsel ; but this the Court disparaged ; moreover, "it ought to appear that
the answers . . . are not a parrot-like repetition of what he has been told to say").
§ 1822. Capacity of Idiots and Lunatics.
[Note 2; add:]
1909, People v. Washor, 196 N. Y. 104, 89 N. E. 441 (trial Court's discretion).
§ 1824. Oath required, etc. ; Interpreters.
[Note 2; add:]
1911, People V. Kelly, 17 Cal. App. 447, 120 Pac. 46 (under P. C. §§ 686, 869, the tran-
script of a deposition taken through an interpreter need not show that the interpreter was
sworn).
1908, Peoples. Western, 236 111. 104, 86 N. E. 188 (the oath need not be administered dur-
ing the questions necessary for ascertaining his competency; but the jury should be re-
moved at that time, on demand).
§ 1825. Infants, Peers, Accused Persons.
[Note 2; add:]
1907, Hodd V. Tacoma, 45 Wash. 436, 88 Pac. 842.
§ 1827. Abolition or Optional Dispensation of the Oath.
[Note 1; add:]
1903, T. R. White, Oaths in Judicial Proceedings, American Law Register, N. S., XLII,
372 (the best consideration of the subject).
[Note 4 ; add :]
The history of the legislation is fully given in Professor White's article, cited supra, n. 1.
418
OATH § 1828
§ 1828. Same : State of the Law in the Various Jurisdictions.
[Note 1 ; add, under England, at the end :]
1889, St. 52-3 Vict. c. 44, § 8 (similar to St. 48-9 Vict. c. 69, § 4, for offences of cruelty ta
children; oath unnecessary, if the child "does not understand the nature of an oath").
1904, St. 4 Edw. VII, c. 15, § 15 (Prevention of Cruelty to Children Act; similar to St. 52
& 53 Vict. c. 44, supra, for offences under this act).
St. 1908, 8 Edw. VII, c. 67, § 30 (Children Act; like St. 48-9 Vict. c. 69, § 4, for offences
against children ; corroboration required ; see po«<, § 2066).
St. 1909, 9 Edw. VII, c. 39, Oaths Act, § 2 ("Any oath may be administered and taken in
the form and manner following : The person taking the oath shall hold the New Testament,
or, in the case of a Jew, the old Testament, in his uplifted hand, and shall say or repeat
after the officer administering the oath the words : 'I swear by Almighty God that
. . . ' followed by the words prescribed by law. The officer shall (unless the person about
to take the oath voluntarily objects thereto or is physically incapable of so taking the oath)
administer the oath in the form and manner aforesaid without question"; provided that a
person neither Christian nor Jew may take oath in any other now lawful manner).
[Note 1 ; add, under Canada :]
Alta. : St. 1910, 2d sess., c. 3, Evidence Act, § 14 (par. (1), like Eng. St. 1838, c. 105; par.
(2), like Eng. St. 1888, c. 46, § 3) ; § 15 (like Can. Evid. Act 1893, c. 31, § 23, but adding the
proviso "and if the presiding judge ... is' satisfied that such person objects to be sworn
from conscientious scruples, or on the ground of his religious beUef or on the ground that
the taking of an oath would have no binding effect on his conscience"). § 16 (like Eng.
St. 1888, c. 46, § 5) ; § 17 (like Can. St. 1893, c. 31, § 25).
Ont. : St. 1909, c. 43, § 14 (like Eng. St. 1838, c. 105) ; § 15 (like Alta. St. 1910, c. 3, § 15).
Sask. : St. 1907, c. 12, Evidence Act, § 31 (like Can. St. 1893, c. 31, § 25).
ib. § 35 (like Can. St. 1893, c. 31, § 23).
Yukon: St. 1904, c. 5, § 44 (like Eng. St. 51 & 52 Vict., c. 46, § 1).
[Note 1 ; under United States, cuM:] i
Nebraska : Comp. St. 1899, § 5902 (Indians and negroes ; cited ante, § 516, n. 15).
1909, Pumphrey v. State, 84 Nebr. 636, 122 N. W. 19 (a Japanese presumed competent).
New Jersey: St. 1911, c. 207, p. 438 (form of oath in district court; amending Eevl St.
1898, District Courts, Apr. 14, § 158).
New York: C. Cr. P. 1881, § 392, as amended by St. 1892, c. 279 (in criminal proceedings,
when a child "actually or apparently" under twelve "does not in the opinion of the Court
or magistrate understand the nature of an oath, the evidence of such child may be received
though not given under oath, if in the opinion of the Coifft or magistrate such child is pos-
sessed of sufficient intelligence to justify the reception of the evidence. But no person
shall be held or convicted of an offence upon such testimony unsupported by other evi-
dence"). 1906, People v. Johnson, 185 N. Y. 219, 77 N. E. 1164 (St. 1892, c. 279, applied ;
the presumption is that a child thus admitted without oath was duly found by the trial
Court not to understand its nature). 1907, People v. Sexton, 187 N. Y. 495, 80 N. E. 396
(C. Cr. P. § 392 is constitutional).
NoHh Carolina: Rev. 1905, §§ 2354, 2355, 2356 (like Code 1883, §§ 3309, 3310, 3311).
Rev. 1905, § 2360 (under "Oaths of Office" are given forms of oath for witnesses, which are
in the usual phrases of the common-law custom, and not in those of the foregoing sections);.
Pennsylvania: St. 1909, No. 90, p. 140, § 2 ("The capacity of any person who shall testify in
any judicial proceeding shall be in no wise affected by his opinions on matters of religion") ;
§ 3 ("No witness shall be questioned in any judicial proceeding concerning his religious
belief, nor shall any evidence be heard upon the subject for the purpose of affecting either
his competency or credibiHty") ; § 4 (affirmation may be used by "any witness who desires
to affirm").
419
§ 1828 OATH
{Note 1 — continued]
United States: St. 1911, Mar. 3, c. 231, Judicial Code, § 170 (oath or affirmation of wit-
nesses in the Court of Claims; superseding Rev. St. § 1084).
Equity Rules 1912, No. 78 (re-enacts No. 91).
[Text, par. (a), 1. 5, after "scruples"; insert a new note 2a :]
^ Under such statutes the witness must first explicitly state that the scruple exists.
1892, R. V. Moore, 17 Cox. Cr. 458 (under St. 1869, 32-33 Vict., c. 68, § 4).
1911, R. V. Deakin, 16 Br. C. 271 (under Can. Evid. Act, § 14).
[Note 4:-, add:]
as well as New York (supra, § 1828, n. 1).
[Note 5 ; add :]
In Pennsylvania such an exception has been virtually read into the law, without statute :
1905, Com. V. Furman, 211 Pa. 549, 60 Atl. 1089.
[Note 7, par. 1 ; add :]
1905, Freasier v. State, — Tex. Cr. — , 84 S. W. 360 (to know that "it is wrong to tell a
lie" suffices, for a child).
1907, Clinton v. State, 53 Fla. 98, 43 So. 312 ("Neither belief in a Supreme Being nor in
divine punishment is requisite to the competency of a witness" under the statute and
Constitution; here apphed to a child).
1905, Clark v. Finnegan, 127 la. 644, 103 N. W. 970 ("If a child has the necessary intel-
ligence, and appreciates the moral duty to tell the truth, he need not fully understand the
nature of an oath, or have any particular religious belief or training" ; here, a child of seven,
who "understood that he was to tell the truth," was admitted).
1905, Bright v. Com., 120 Ky. 298, 86 S. W. 527 (like White v. Com., which however is not
cited, the judge being new in office).
1914, State v. Pitt, — N. C. — , 80 S. E. 1060 (a witness who didn't know what would
happen to a liar except be put in the lockup, held competent under Revisal, §§ 1496, 2360).
§1831. Per jiiry- Penalty; Nature of the Security.
[Text, p. 2373, at end ; add a note 1 :]
Mr. Wm. A. Purrington has forcefully commented on the. practical inefficiency of the mod-
ern perjury-penalty ("The Frequency of Perjury," Columbia Law Review, VIII, 67, 1908).
§ 1832. Per jury- Penalty; Rules of Exclusion, etc.
[Note 2; add:]
Contra : 1905, Freasier v. State, — Tex. Cr. — , 84 S. W. 360 (here proceeding on the words
of the Constitution that oaths "shall be taken subject to the pains and penalties of perjury,"
and upon a statute making children of under nine years incapable of perjury ; none of the
above cases are cited ; Brooks, J., dissenting, forcibly points out "the monstrosity of the
result"). But a Texas statute of 1905 (c. 59, § 1), doubtless passed in response to the recom-
mendation in this case, has made an infant below nine years capable of perjury "when it
shall appear by proof that he had sufficient discretion to understand the nature and obliga-
tion of an oath" ; so that the foregoing decision is presumably no longer law.
§ 1834. Publicity ; General Nature of the Security.
[Note 2; add:]
A good instance is dramatically told in Mr. Ashton Hilliers' romance, "Fanshawe of the
Fifth " (1907, p. 336), a story laid in England in the early 1880 s.
420
PERJURY-PENALTY; PUBLICITY j SEQUESTRATION § 1840
§ 1835. Publicity ; Exceptions to the Rule.
[Note 1 ; add, under Accord:]
1908, Tilton v. State, 5 Ga. App. 59, 62 S. E. 651 (with limitations; collecting the cases).
1904, State v. Worthen, 124 la. 408, 100 N. W. 330.
1907, State v. Callahan, lOO Minn. 63, 110 N. W. 342 (assaulfof rape; exclusion of spec-
tators held proper on the facts; Elliott, J., diss.).
1909, State v. Nyhus, 19 N. D. 326, 124 N. W. 71 (rape; exclusion of general public, held
proper on the facts).
1906, State v. Hensley, 75 Oh. 255, 79 N. E. 462 (rape under age ; order of exclusion of the
public held too general in its terms ; here the ruling is reprehensible, because it gave no
effect to the defendant's practical waiver of objection ; it is an indignity to the Constitu-
tion to enforce its rights for a party who does not care enough about them to claim them
at its trial).
[Note 1 ; add, under Contra :]
1909, State v. Osborne, 54 Or. 289, 103 Pac. 62 (rape ; order of exclusion held improper ;
good opinion by King, J.).
§ 1837. Sequestration of Witnesses ; History, Statutes.
[Note 5; add:]
Ante 1340, Norwich Custumal, quoted in Bateson's " Borough Customs," I, 203, Selden
Society, XVIII, 1904.
[Note 10; add:]
Cat. : St. 1907, c. 394, p. 734, Mar. 20 (re-enacting the Commissioners' amendment of 1901).
N. C: Rev. 1905, § 3195 (Uke Code 1883, § 1149).
§ 1839. Demandable as of Right.
[Note 4 ; add :]
1904, Parrish v. State, 139 Ala. 16, 36 So. 1012.
1904, Coolman v. State, 163 Ind. 503, 72 N. E. 568.
1904, State v. Worthen, 124 la. 408, 100 N. W. 330, semhle.
1910, Johns D. State, 88 Nebr. 145, 129 N. W. 247.
1904, Bromberger ». U. S., 128 Fed. 346, C. C. A. (one witness).
1906, State v. Dalton, Wash., 86 Pac. 590 (murder).
1903, Loose v. State, 120 Wis. 115, 97 N. W. 526.
§ 1840. Mode of Procedure.
[Note 2; add:]
1907, Joseph v. Com., — Ky. — , 99 S. W. 311 (in the trial Court's discretion; but not as
of rule under Civ. C. Pr. § 601).
[NoU^; add:]
A similar expedient is used in patent^nterfereruse proceedings, by requiring separate prelimi-
nary statements : 1912, Thomas v. Weintraub, 38 D. C. App. 281.
[Note 11 ; add:]
1906, State v. Goodson, 116 La. 388, 40 So. 771 (co-defendants not allowed as of right to
consult a co-indictee in jail and about to be used as a witness for the State).
1906, State v. James Co., 117 La. — , 41 So. 702 (prosecuting attorney may consult the wit-
nesses in the -trial Court's discretion).
421
§ 1841 PERJURY-PENALTY; PUBLICITY; SEQUESTRATION
§ 184L Persons to be included in the Order.
[Note 1; add:]
1905, City Electric R. Co. v. Smith, 121 Ga. 663, 49 S. E. 724.v
1904, Coolman v. State, 163 Ind. 503, 72 N. E. 568 (prosecuting witness allowed to remain
to aid the State's attorney).
1909, State v. Pell, 140 la. 655, 119 N. W. 154 (family of mm-dered man).
1910, Druin v. Com., — Ky. — , 124 S. W. 856 (rape under age; father of prosecutrix
allowed to remain).
1904, King v. Hanson, 13 N. D. 85, 99 N. W. 1085.
1904, Smartt v. State, .112 Tenn. 539, 80 S. W. 586 (prosecutor). 1912, Hughes v. State,
126 Tenn. 40, 148 S. W. 543 (detective assisting in preparing the case for trial).
[Note 3; add:]
1907, Atlantic & B. R. Co. v. Johnson, 127 Ga. 392, 56 S. E. 482 (physician).
[Notei; add:]
1908, State v. High, 122 La. 521, 47 So. 878 (police officer).
[Note 8, par. 1 ; add:]
It has now been so decided :
1904, Smartt v. State, 112 Tenn. 539, 80 S. W. 586.
[Note 9; add:]
1905, Greer v. Com., — Ky. — , 85 S. W. 166 (the trial Court may in discretion allow one
witness to remain, here a prosecuting witness).
§ 1842. Disqualification as a Consequence of Disobedience.
[Note 3; add:]
1905, Braham v. State, 143 Ala. 28, 38 So. 919.
1904, Davis v. State, 120 Ga. 843, 48 S. E. 305. 1904, Phillips v. State, 121 Ga. 358, 49
S. E. 290. 1905, Sharpton v. Augusta & A. R. Co., — Ga. — , 51 S. E. 553. 1906, Green
V. State, 125 Ga. 742, 54 S. E. 724.
1904, State v. Pray, 126 la. 249, 99 N. W. 1065.
1906, State v. Hogan, 117 La. 863, 42 So. 352. 1908, State v. High, 122 La. 521, 47 So.
878 (discretion). ,
1904, People v. McGairy, 136 Mich. 316, 99 N. W. 147.
1906, Luck V. State, — Tex. Cr. — , 98 S. W. 1059.
1903, Loose v. State, 120 Wis. 115, 97 N. W. 526.
[Note 4; add:]
1907, Degg V. State, 150 Ala. 3, 43 So. 484 (for an accused's witness).
1905, State v. Ilomaki, 40 Wash. 629, 82 Pac. 873 (State v. Lee Doon, followed). 1908,
Hendelman v. Kahan, 50 Wash. 247, 97 Pac. 109 (may be excluded in discretion, if the
party is in fault).
§ 1850, List of Witnesses ; Criminal Cases, etc. ; I. Common-Law Rule.
[Note 1, 1. 4; correct:]
For"§ 138," read "§ 1378."
[Note 1, at the end; add:]
But under these American statutes the accused (except perhaps in New York) obtains no
right to inspect before trial the contents of the testimony given before the grand jury : Cases
cited infra, n. 4.
422
SEQUESTRATION; DISCOVERY §1851
[Note 3, par. 1, 1. 5 ; add :]
1895, Thiede v. Utah, 159 U. S. 510, 515, 16 Sup. 62 (murder; quoted post, § 1852, n. 4).
1904, Balliet v. U. S., 129 Fed. 689, 692, 64 C. C. A. 201 (fraud in the mails).
1906, Ball V. U. S., 147 Fed. 32, 36, C. C. A.
[Note 4, 1. 9; add:]
1906, Baker v. State, 51 Fla. 1, 40 So. 673 (neither under Rev. St. 1892, § 2901, allowing a
copy of the indictment, nor otherwise, is the accused entitled to a list of witnesses before
trial). 1907, Barrington v. Missouri, 205 U. S. 483, 27 Sup. 582 ("The right of the accused
to the indorsement of names of witnesses does not rest on the common law, but is statu-
tory").
1910, Porter v. State, 173 Ind. 694, 91 N. E. 340.
Much less may the defendant obtain before trial the notes of testimony taken before the
grand jury : 1898, Franklin v. Com., 105 Ky. 237, 48 S. W. 986.
1904, Howard ». Com., 118 Ky. 1, 80 S. W. 211, 81 S. W. 704.
1910, State v. Rhoads, 81 Oh. 397, 91 N. E. 186 (accused held not entitled to inspect min-
utes of evidence taken before the grand jury and in possession of prosecutor ; cases col-
lected).
1905, Havenor v. State, 125 Wis. 444, 104 N. W. 116 (here applied to a defendant desiring
to peruse the grand jury's record of testimony in order to plead immunity for testimony
there given by him). Compare Farnham v. Colman, S. D., cited post, § 1858, n. 16. This
would also perhaps be a consequence of the privilege rule {post, § 2363, n. 8).
Nor is the accused entitled to a disclosure of any other evidence, except so far as the ensu-
ing statutes have so provided : 1910, Porter v. State, 173 Ind. 694, 91 N. E. 340 (accused's
own testimony before the grand jury).
1912, State v. Steele, 117 Minn. 384, 135 N. W. 1128 (copy of the accused's preliminary
examination).
§1851. Same: II. Statutory Rule of Procedure, etc.
[Note 1; add:]
Note that (on the principle of § 6, ante) in trials in Federal courts the Federal statute (post,
§ 1854) applies, and not the statute of the State where the trial is held : 1908, Jones v.
U. S., 9th C. C. A., 162 Fed. 417 (collecting prior cases) ; and Federal cases cited supra,
§ 1850, n. 3.
[NoU2; add:]
Ida. Rev. St. 1887, § 7668 (similar to N. D. Rev. Code, 1899, § 8034, including depositions).
Ind. St. 1905, p. 584, § 112 (re-enacts the foregoing Rev. St. 1887, § 1763).
la. St. 1911, c. 188, p. 201, Apr. 4, § 4 (the county attorney on filing an information shall
indorse " the names of the witnesses whose evidence he expects to introduce and use on the
trial," and also "a minute of the evidence" to be given by each; if on the trial "witnesses
in addition to those whose names are so indorsed" are desired, the procedure is to be the
same as for indictments).
Ky. C. Cr. P. 1895, § 120 ("When an indictment is found, the names of all the witnesses
who were examined must be written at the foot of or on the indictment").
Md. Pub. Gen. L. 1904, art. 27, § 440 (false pretences; the defendant before trial "shall
be entitled to the names of the witnesses and a statement of the false pretences intended
to be given in evidence").
N. C. Rev. 1905, § 3241 (like Code 1883, § 1176).
[NoUi; add:]
Ida. St. 1899, Feb. 6, § 2, p. 125 (the information shall be indorsed, etc., substantially as
in Mich. Comp. L. § 1193, infra).
423
§1851 SEQUESTRATION; DISCOVERY
[Note 3 — continited]
Ind. St. 1905, p. 584, § 119 (on an information shall be, indorsed "the names of all the
material witnesses" ; with a proviso for other witnesses as in the case of indictments).
OM. Snyder's Comp. L. 1909, § 6691.
[Note 4 ; aM :]
Md. Pub. Gen. L. 1904, Art. 27, § 440 (false pretences ; the State's attorney upon request
shall furnish "the names of the witnesses and a statement of the false pretences intended
to be given in evidence").
§ 1852. Same : (1) List of Grand- Jury Witnesses.
[Note 2, par 1 ; add:]
1907, State v. Barber, 13 Ida. 65, 88 Pac. 418 (unindorsed witness, called in rebuttal, ex-
cluded, for lack of a proper showing; but it does not here appear whether the witness had
been examined before the grand jury).
1895, Sutton ». Com., 97 Ky. 308, 30 S. W. 661 (motion to quash, not made in season).
1905, Thompkins v. Com., — Ky. — , 90 S. W. 221 (a motion to quash is the proper remedy).
1906, State v. Barrington, 198 Mo. 23, 95 S. W. 235 (if some names are purposely omitted,
to obtain undue advantage, the remedy is quashing or postponement).
1913, Herrell «. State, — Okl. Cr. App. — , 134 Pac. 1139.
[NoUi; add:]
1906, State v. Barrington, 198 Mo. 23, 95 S. W. 235.
[Note^; add:]
1906, Leftridge v. U. S., 6 Ind. Terr. 305, 97 S. W. 1018 (Arkansas statute applied).
1905, Underwood v. Com., 119 Ky. 384, 84 S. W. 310.
1905, State v. Henderson, 186 Mo. 473, 85 S. W. 576 (but here the Court intimates an excep-
tion for cases of surprise). 1905, State «. Bailey, 190 Mo. 257, 88 S. W. 733 (similar). 1906,
State V. Myers, 198 Mo. 225, 94 S. W. 242 (similar; reviewing the cases). 1906, State v.
Barrington, 198 Mo. 23, 95 S. W. 235. 1912, State v. Lawson, 239 Mo. 591, 145 S. W. 92
(but here a flexibility is provided for).
1904, Cochran v. U. S., 14 Okl. 108, 76 Pac. 672.
[Note 5 ; add, under Illinois :]
1904, Hauser ». People, 210 111. 253, 71 N. E. 416. 1909, People v. Lutzow, 240 111. 612, 88
N. E. 1049 (same). 1909, People v. Williams, 240 111. 633, 88 N. E. 1053 (same). 1910,
People V. Steinliauer, 248 111. 46, 93 N. E. 299 (same).
1905, Thompkins v. Com., — Ky. — , 90 S. W. 221, seTnhle.
1906, Schaumloeflel ». State, 102 Md. 470, 62 Atl. 803 (rule of Gardner v. People, III,
supra, approved).
1905, State v. Cambron, 20 S. D. 282, 105 N. W. 241 (foregoing cases approved).
[Text, p. 2421 ; at the end of the §, add a new note 6 :]
But the right to have a list of the names does not include the right to inspect the testimony :
Cases cited ante, § 1850, n. 4.
§ 1853. Same : (2) List of Witnesses Known to Prosecuting Attorney.
[Note 1; add:]
la. : 1904, State v. Crea, 10 Ida. 88, 76 Pac. 1013.
Okl. : see the citations in the next note.
424
DISCOVERY BEFORE TRIAL § 1855
lNoU2;add:]
Colo. : 1912, Hardesty v. People, 52 Colo. 450, 121 Pac. 1023 (the opinion does not inquire
at all whether the defendant was surprised, and cites no authority ; why was not Askew v.
People, supra, § 1852, n. 5, considered ?).
Nebr.: 1906, Reed i'. State, 75 Nebr. 509, 106 N. W. 649 (like Carroll v. State, supra).
Okl.: 1910, Steen » State, 4 Okl. Cr. 309, 111 Pac. 1097. 1911, Hawkins v. State, 6 Old.
Cr. 308, 118 Pac. 607 ("Steen's case is based on an arbitrary statute") ; but the foregoing
cases apply to misdemeanors only, under Snyder's Comp. L. 1909, § 6644 ; for felonies, the
rule is that other witnesses may be indorsed in the trial Court's discretion under Snyder's
Comp. L. 1909, § 6691 : 1909, Vance ». Terr., 3 Okl. Cr. 208, 105 Pac. 307. 1911, Stockton
V. State, 5 Okl. Cr. 510, 114 Pac. 626.
[Note 4; add,:]
Ida. : 1902, State v. Wilmbusse, 8 Ida. 608, 70 Pac. 849. 1904, State v. Crea, 10 Ida. 88, 76
Pac. 1013 (but such an indorsement made at the time of trial, without showing any reason
for the tardy indorsement, is insufficient). 1904, State v. Rooke, 10 Ida. 388, 79 Pac. 82
(indorsement before trial, held proper on the facts).
Mont. : 1912, State v. Biggs, 45 Mont. 400, 123 Pac. 410. 1912, State v. Lawson, 44 Mont.
488, 120 Pac. 808 (following Kelly v. State, Nebr. ; one judge diss.).
Nebr. : 1910, Ossenkop v. State, 86 Nebr. 539, 126 N. W. 72 (trial Court's discretion ap-
proved). 1910, Wilson V. State, 87 Nebr. 638, 128 N. W. 38 (on the facts, excluded).
Okl. : 1910, Steen v. State, 4 Okl. Cr. 309, HI Pac. 1097 (the prosecutor must show that the
witness was not known).
N. D. : 1908, State v. Matejousky, 22 S. D. 30, 115 N. W. 96.
Wash.: 1904, State v. Van Waters, 36 Wash. 358, 78 Pac. 897.
§ 1854. Same : (3) List of All Prospective Witnesses.
[Note 2; add:]
Accord. : 1904, Shaffer v. U. S., 24 D. C. App. 417, 432 (accused held not to have been misled
on the facts by an ambiguous description). 1895, Thiede v. Utah, 159 U. S. 510, 515, 16
Sup. 62 (murder; quoted ante, § 1852, n. 4). 1904, Balliet v. U S., 129 Fed. 689, 692, 64
C. C. A. 201 (fraud in the mails; the U. S. statute held not applicable).
Contra: 1906, Schaumloeffel ». State, 102 Md. 470, 62 Atl. 603. 1906, Cairnes v. Pelton,
103 Md. 40, 63 Atl. 105 (Schaumloeffel v. State approved).
Note that in Illinms the statute of this form is treated by the Courts as one of the first
sort {ante, § 1852).
[Nolei; add:]
1906, Cairnes v. Pelton, 103 Md. 40, 63 Atl. 105.
[Nate 5; add:]
1906, Ball V. U. S., 147 Fed. 32, 36, C. C. A. (U. S. Rev. St. 1878, § 1033, does not apply to
territorial courts ; here in Alaska).
1908, Jones v. U. S., 9th C. C. A., 162 Fed. 417 (conspiracy to defraud).
§ 1855, Same : III. Statutory Riile of Evidence, etc.
[Note 1; add:]
1907, State v. Johnson, 133 la. 38, 110 N. W. 170.
[Note 5 ; add :]
1907, State s. Bennett, 137 la. 427, 110 N. W. 150.
425
§ 1855 DISCOVERY BEFORE TRIAL
[Note 6; add:]
^ 1904, State v. Trusty, 122 la. 82, 97 N. W. 989.
[Text, p. 2425, 1. 15; add a new § 1855a :]
§ 1855a. Same : (IV), Statutory Rule of Procedure allomng Discovery of
Witnesses' Testimony. The foregoing methods provide merely for a list of
witnesses, to be furnished to the defendant. But may he obtain also the
tenor of their testimony; i. e. supposing them not to tell him their story vol-
untarily on request, is there any legal rule enabling him to get it from them ?
There are two such rules.
(1) In a few jurisdictions (England, Minnesota), the statute providing for
a list of witnesses gives also the right to inspect the reported testimony of the
witnesses before the grand jury.^
^ Statutes cited ante, § 1851 ; note 4 to § 1850.
(2) In jurisdictions allowing depositions to be taken unconditionally by an
accused {ante, § 1401), such a deposition is virtually also a discovery before trial.^
2 1911, Welborn v. Faulconer, 237 Mo. 297, 141 S. W. 31 (applying Rev. St. 1909, § 5173 ;
able opinion by Blair, C).
§ 1856. Civil Cases (Discovery in Equity, etc.).
[Note 5; add:]
1906, Union Coll. Co. «. Superior Court, 149 Cal. 790, 87 Pac. 1035, semble (discovery from a
third person as to the whereabouts of certain defendants, so as to be enabled to serve them
■with process, refused ; but the ruling is absurd as regards the ground stated in the opinion,
that the parties' whereabouts "cannot be said to be material"; such reasoning is not fit
logic for judicial officers having responsibilities to the life and property of the community;
the opinion, moreover, refers to the question of compelling "the defendant or a stranger" to
m^ke discovery as if there were no distinction between the two, and it does not appear what
was the precise status of the person summoned).
1906, Ex parte Schoepf, 74 Oh. 1, 77 N. E. 276, 279 (street-car injury).
1906, International Coal M. Co. v. Pennsylvania R. Co., 214 Pa. 469, 63 Atl. 877.
1907, Kurtz V. Brown, 152 Fed. 372, C. C. A. 1908, Brown v. Huey, C. C. E. D. Pa., 166
Fed. 483 (stockbroker purchasing for another's account, here held not a third person).
1909, Griesa v. Mutual Life Ins. Co., 8th C. C. A., 169 Fed. 509 (discovery held allowable,
in litigation between an insurance company and legatees, against the widow as legal cus-
todian of the insured's body, the issue being as to suicide).
[Note 6, par. 2; add:]
Alta. St. 1910, 2d sess. c. 3, Evidence Act, § 6. '
Br. C. St. 1905, 5 Edw. VII, c. 14, § 87 (discovery in county courts).
Man. St., 1906, 5 & 6 Edw. VII, c. 17, § 2 (amends Rev. St. 1902, e. 40, by adding further
details as Rules 402 A, 402 B, 407 B).
Newf. St. 1904, c. 3, Rules of Court 28.
Ont.: 1912, Brown v. Orde, Ont. H. C. J., 2 D. L. R. 562 (annotated case).
Yukon: Consol. Ord. 1902, c. 17 (Judicature), Ord. XXI, R. R. 200-224.
[Note 7, par. 1 ; add :]
Conn. St. 1889, c. 22; Gen. St. 1902, §§ 732-737.
III. St. 1905, May 18 (Municipal Court), § 32.
426
DISCOVERY BEFORE TRIAL § 1856
[Note 7 — cordinued]
Ind. St. 1907, c. 243, p. 490, Mar. 11, § 6 (civil remedies for monopoly injuries).
la. Code 1897, §§ 3610, 3611.
Kan. St. 1907, c. 259, p. 410, Mar. 9 (anti-trust law) ; St. 1909, c. 113, p. 213, Mar. 12 (non-
resident party).
Mass. St. 1909, c. 225 (amending Rev. L. c. 173, § 57 ; "either party may file interrogatories
to the adverse party for the discovery of any facts ahd documents admissible in evidence at
the trial, except as hereinafter provided"). St. 1913, c. 815 (re-casting the whole subject,
and superseding Rev. L. c. 173, §§ 57-67 and later acts) ; § 1, Interrogatories^ ("Any party,
after the entry of an action at law or the filing of a bill in equity, may interro-
gate an adverse party for the discovery of facts and documents admissible in evidence at
the trial of the case"; word "party" defined) ; § 2 (answers to be in writing, etc.) ; § 3
(filing, etc. ; " No party interrogated shall be obliged to answer a question or produce a
document which would tend to criminate him or to disclose his title to any property the
title whereof is not material to an issue in the proceeding in the course of which he is inter-
rogated, nor to disclose the names of witnesses, except that the court may compel the
party interrogated to disclose the names of witnesses and their addresses if justice seems
to require it, upon such terms and conditions as the coiu-t may deem expedient. . . .") ;
§ 4 (refusal to answer) ; § 5 (examination of corporate and municipal ofiicers) ; § 6 (costs) ;
§ 7 (protection of immaterial matter) ; § 8 (land and probate courts included) ; § 9 (repeal-
ing Rev. L. c. 173, §§ 57-67, c. 159, §§ 16,16, St. 1909, cc. 206, 225, St. 1911, c. 593, St. 1912,
c. 276).
N. J. St. 1911, c. 279, p. 491 (rules for interrogatories in the district court).
N. Y. St. 1909, c. 65, § 3, p. 34 ( C. C. P. §§ 870, 871 amended). St. 1911, c. 781, p. 2087
(amending C. C. P. § 872, by providing for the introduction of the documents in evidence
' ' in addition to the use thereof by the witness to refresh his memory " ) .
JV. C. Rev. 1905, §§ 864-872 (like Code 1883, §§ 579-587).
U. S. Equity Rules 1912, Rule 58.
Wis. St. 1907, c. 369 (amending Stats. § 4096, subd. 3). St. 1911, c. 231, p. 237, c. 232, p.
237 (amending Stats. § 4096, subd. 6 and 7, and § 4097, as to oflBcers of foreign corpora-
tions).
[Note 7, par. 2, at the end ; add:]
compare the following : 1904, Olmsted v. Edson, 71 Nebr. 17, 98 N. W. 415 (parties com-
pelled to give depositions before trial ; "taking the deposition of a party is the only substi-
tute we have for a bill of discovery under our practice").
[Note 8, par. 1, under Accord; add :]
England: Nash v. Layton, [1911] 2 Ch. 71 (Marriott v. Chamberlain approved, and its
apparent contradictions explained).
Wootton V. Sevier, [1913] 3 K. B. 499 (names of witnesses to be given, on the facts).
Canada: 1903, Gibbins v. Metcalfe, 14 Man. 364 (names of witnesses).
1904, Wood V. Dominion L. Co., 37 N. Sc. 250.
1905, Garland v. Clarkson, 9 Ont. L. R. 281 (range of discovery discussed ; discovery from a
beneficial party; powers of a referee).
United States: 1906, Cairnes v. Pelton, 103 Md. 40, 63 Atl. 105 (a bill of particulars need no,t
include the names of witnesses).
1909, Ex parte Button, Ex paHe Hammond, 83 Nebr. 636, 120 N. W. 203 (not decided).
1906, Noyes v. Thorpe, 73 N. H. 481, 62 Atl. 786, 787 (cases collected, but the point not
1913, Watkins v. Cope, 84 N. J. L. 143, 86 Atl. 545.
1906, Ex paHe Schoepf, 74 Oh. 1, 77 N. E. 279 (street-car injury).
1908, Armstrong v. Portland R. Co., 52 Or. 437, 97 Pac. 715 (here the Court refused to strike
427
§ 1856 DISCOVERY BEFORE TRIAL
[Note 8 — continiied]
out the defendant's answer where its secretary had refused to obey a subpcena calling for
disclosure of the names of defendant's witnesses).
Contra: 1887, Meier v. Paulus, 70 Wis. 165, 35 N. W. 301.
1913, Horhck's Malted Milk Co. v. Spiegel Co., 155 Wis. 201, 144 N. W. 272 ; and Wisconsin
cases cited infra, n. 10.
Compare the rule for names and testimony of viitnesaea as disclosed to the attorney under
a privilege (post, § 2319).
[Note 8, par. 4; add:]
England: 1900, Welsbach Incand. G. L. Co. v. New Sunlight I. Co., 2 Ch. 1.
Canada: 1912, Nichols & S. Co. v. Skedanuk, Alta. S. C, 6 D. L. R. 115 (member of an
agency firm, as "officer").
1904, Kircher j). Imperial L. & I. Co., 7 Ont. L. R. 295 (discovery granted against a manager
who had resigned). 1904, Cantin v. News Pub. Co., 8 id. 531 (discovery against a "former
servant of the defendants," not granted). 1905, Clarkson v. Bank of Hamilton, 9 Ont. L.
R. 317 (the corporation should suggest the officer or agent best qualified to give the due
information). 1904, McWiUiams v. Dickson Co., 10 Ont. L. R. 639 (whether the answer of a
party corporation ipay be struck out, for refusal of its officer to give discovery). 1906,
Davies v. Sovereign Bank, 12 Ont. L. R. 557 (a member of a municipal council, not being its
head, is not examinable as an officer or servant of the corporation). 1912, Ontario & W. C.
F. Co. V. Hamilton G. & B. R. Co., Ont. H. C. J., 1 D. L. R. 485 (former employee).
1912, Toronto G. T. Co. v. Municipal C. Co., Sask. S. C, ID. L. R. 552 (former employee).
For the earlier English cases, there is a good collection and a careful study of them in an
article by Mr. Alex. McGregor, "What Persons in the Service of a litigating Corporation are
examinable for Discovery on its behalf," Canadian Law Review, II, 254 (1902).
As to discovery from infants and their next friends : 1907, Vano v. Canadian C. C. Mills
Co., 13 Ont. L. R. 421.
[Note^; add:]
1905, Spinney v. Boston Elev. R. Co., 188 Mass. 30, 73 N. E. 1021 (the demandant is entitled
to the opponent's oath that the matters asked for are within the statute ; here a report of the
conductor upon a raiboad accident, giving the names of persons present, etc.).
1909, Carroll v. Boston Elev. R. Co., 200 Mass. 527, 86 N. E. 793 (names not disclosable).
1912, Looney v. Saltonstall, 212 Mass. 69, 98 N. E. 698 («em6«e, under St. 1909, c. 225,
quoted supra, n. 7, this limitation is not abolished).
[Text, p. 2429, in 1. 7, after "progress" ; insert a new note 9a :]
^'' In Massachmetts the progressive step has now been taken of removing this limitation
as to names of witnesses.
Mass. St. 1911, c. 593 (the Court may compel either party, upon terms, to disclose the
names and addresses of his witnesses " if justice seems to require it, . . . where the names
of witnesses are in the exclusive possession of one party to the action").
1913, Delaney v. Berkshire St. R. Co., 215 Mass. 591, 102 N. E. 901 (St. 1911, c. 593, in-
cidentally referred to, in suppressing improper argument by counsel). St. 1913, c. 815
(quoted supra, n. 7), which recasts the whole chapter, Rev. L. c. 173, on discovery, retains
this advance.
[Note 10, par. 1 ; add:]
1910, Grebenstein v. Stone & Webster Eng. Co., 205 Mass. 431, 91 N. E. 411 (Rev. L. 1902,
c. 173, § 57, construed to limit the discovery to matters supporting the applicant's own case).
1912, Looney d. Saltonstall, 212 Mass. 69, 98 N. E. 698 (under St. 1909, c. 225, quoted
supra, note 7, the discovery is not limited to the party's own case).
428
DISCOVERY BEFORE TRIAL § 1856
[Note 10, par. 2; add:]
1903, Hanks Dental Ass'n v. Tooth Crown Co., 194 U. S. 303, 24 Sup. 700 (the defendant
took the deposition of the plaintiff's president before trial, under N. Y. C. C. P. 1877, § 870 ;
held (1) that it was inadmissible under U. S. Rev. St. 1878, §§ 861, 863, 866, 867, following
Ex parte Fisk, supra; (2) that under St. 1892, Mar. 9, e. 14, quoted ante, § 1381, n. 3, pro-
viding that in Federal courts an additional "mode of taking the depositions of witnesses"
may be "the mode prescribed by the laws of the State," etc., the deposition was equally
inadmissible, since the word "mode"in St. 1892 does not have "a broader significance" than
in Rev. St. § 861 ; yet it would seem that if the Court in Ex parte Fisk held the word "mode"
in Rev. St. § 861 to include discovery before trial and thus to conflict with N. Y. C. C. P.
§ 870, it is inconsistent here to hold that the word "mode"' in St. 1892 does not include
discovery before trial). 1905, Blood v. Morrin, 140 Fed. 918, C. C. (under U. S. Rev. St.
§§ 863, 876, providing for depositions ds bene of witnesses residing more than one hundred
miles away, a party may take the deposition of his opponent, so residing, before trial ; Ex
parte Fisk distinguished). 1907, Smith v. International Mercantile Co., C. C. N. J., 154
Fed. 786 (Hanks Dental Ass'n v. Tooth Crown Co., followed, refusing to allow interrogar
tories to opponent under N. J. Pub. L. 1903, § 140, p. 537). 1909, Frost v. Barber, C. C. '
S. D. N. Y., 173 Fed. 847 (following Hanks Dental Ass'n v. Tooth Crown Co.).
[Note 10, after par. 1; add:] \
In England and Canada, the rule for discovery in libel seems to give special difficulty : 1905,
White V. Credit Reform Ass'n, 1 K. B. 653 (libel by a mercantile agency ; certain inquiries
as to the source of information, etc., passed upon). 1905, Edmondson v. Birch, 2 K. B.
523 (similar). 1906, Plymouth M. C. & I. Soc'y v. Traders' P. Ass'n, 1 K. B. 403 (sunilar).
1906, Massey-Harris Co. v. DeLaval S. Co., 11 Ont. L. R. 227, 591 (Ubel; discovery of
information concerning defendant's plea of privilege). 1906, McKergow v. Comstock, 11
Ont. L. R. 637 (Ubel ; discovery of matters relevant to defendant's good faith in exercising a
qualified privilege).
The statutes often provide that judgment may be taken against a party improperly refus-
ing to answer such interrogatories ; compare post, § 2218, n. 6, par. 3, and ante, § 1210, n. 2 ;
1907, Free v. Western U. Tel. Co., 135 la, 69, 110 N. W. 143 (method of penalizing a refusal
by entering judgment, etc., considered). The following article may be consulted :
Rayniond D. Thurber, "Examinations before Trial," XXV, Bench & Bar, 62.
[Text, p. 2431, after par. (3) ; add a, new par. (4) :]
(4) Discovery from witnesses. The traditional chancery rule did not permit
discovery to be obtained from witnesses, i. e. third persons not parties {supra,
par. 1, p. 2427, n. 5). But under the modern deposition statutes {ante, § 1411)
pennitting parties more or less freely to take depositions before trial, may not
such discovery be effectually sought ? It would be a sound extension of the
principle to permit it; the chancery practice was too cautious; modern
policy tends to acknowledge this.
The obstacle, however, is that the statutes, aiming merely to preserve
for the trial testimony in danger of being lost, impose usually as a condition
that the witness shall be ill or about to leave the State, etc. This restricts
the opportunity of getting discovery to a narrow class of witnesses.
But where the statute does not expressly impose such a condition for
taking the deposition (but only for using it), may not the trial Court in dis-
cretion decline to impose these traditional limits, and grant an order to take
where he deems it wise? It would seem so. The contrary has. been laid
429
§ 1856 DISCOVERY BEFORE TRIAL
[Text, p. 2431 — contimied]
down, in an opinion which deserves notice for the inadequacy of the reasons
put forward :
1906, International Coal Mining Company v. Pennsylvania Railroad Co., 214 Pa. 469, 63
Atl. 877.
Assumpsit to recover rebates; from the record it appeared that while an action was pending,
plaintiff entered a rule to take depositions on John Lloyd on eight days' notice. At a
meeting held in pursuance of the rule, Lloyd was asked whether any officer or director of the
Pennsylvania Railroad Company was a stockholder in the Columbia Coal Company. The
witness refused to answer the question. The Court subsequently made an order directing
him to answer the question propounded to him.
Brown, J.: " For cause existing, cotu'ts of equity permit testimony to be taken for its
perpetuation. . . . When, in view of the condition, circumstances or conduct of a witness,
his testimony may be lost to the party needing it, if not taken in advance of the trial, it
ought to be so taken, but as courts of equity have not gone beyond this, it is the limit for
courts of law. By the rule in the court below, under which the appellee insists that it has a
right to examine the appellant outside of court and in advance of the trial, either party to a
pending action may at any time, as a matter of coiu'se, with no cause existing for doing so,
proceed to examine any witness in advance of the trial, though he be neither aged, infirm
nor going, and there be no reason for supposing that he will not appear in court when
subpoenaed to do so. The rule is : 'A rule may in like manner be entered by either party
to take the depositions of witnesses without regard to the circumstances of their being aged,
infirm or going witnesses, stipulating, however, eight days' notice to the adverse party;
subject, nevertheless, in all other respects to the existing rules and regulations.'
" In the regular and orderly trial of a cause witnesses appear in open court, and jurors,
from seeing, as well as hearing them, pass upon their credibility. Exception to this wise rule of
the common law must be based upon some necessity requiring it to be disregarded in the
interest of justice. But under the rule in the court below, for no reason and with no neces-
sity for taking the deposition of a witness in advance of a trial, either party to the action,
upon a mere whim or caprice, may compel the examination of every one of his witnesses
before a magistrate or notary public in advance of the trial, and require the opposite party,
with his counsel, to appear as often as such an examination takes place. In this disorderly
innovation upon trial before a jury, licensed by the rule below, the rights of witnesses are
not to be overlooked. As a rule, it is inconvenient for anyone to be interrupted in his'
business or vocation in life by being compelled, in obedience to a subpoena, to appear in
court to testify on the trial of a cause ; but every member of society must expect at times to
be subjected to this inconvenience, because the administration of justice and his duty as a
citizen require him to submit to it. This, however, is not the case when he is compelled to
appear before a commissioner to testify in advance of the trial upon the mere whim or ca-
price of a plaintiff or defendant, and in the absence of any necessity requiring him to so ap-
pear. There having been no reason shown why the appellant should have been subjected
to the inconvenience and annoyance of being called before a notary public to testify as a
witness for the plaintiff in advance of the trial, he has a right to complain of the unwarranted
calling of him away from his business, especially as he is liable to be called into court by the
very party taking his deposition, to testify on the trial of the cause. It is of this that he
complains, and his complaint is just. . . . We are informed that the learned court below
has indicated its own view in this regard by rescinding the rule and adopting in its place one
by which, 'upon notice and cause shown,' witnesses may be examined without regard to
their being aged, infirm or going."
Now the real ground of opposition here was the witness' dislike to disclose
the fact as to the holding of stock. It was not an annoyance at being sum-
moned from his business. It seldom is. The learned Court's labored expo-
430
DISCOVERY BEFORE TRIAL § 1858
[Text, p. 2431 — continued]
sition of this annoyance to witnesses puts- forward a conventional ground
which is not the real ground. There is no propriety in shielding thus the
true controversy over the policy of this kind of discovery. Cant reasons
had better be abandoned. The real issue is, Can not discovery be properly
extended, leaving to the trial Court to control the possibilities of abuse ? '
' The following case further illustrates this question :
1910, Boston & Maine R. Co. v. State, 75 N. H. 513, 77 Atl. 996.
In these cases the problems that arise concern often the magistrate's or notary's power to
rule on the relevancy of the questions {post, §§ 2195, 2210).
§ 1857. Documents ; Inspection by Discovery in Equity.
[Note 1 ; add :]
1905, Ormerod v. St. George's Ironworks, 1 Ch. 505 (earlier practice as to taking copies,
considered).
§ 1858. Inspection at Common Law, etc.
[Note 2 ; add a new paragraph :]
For the right of a citizen to inspect public records, see the following :
1905, State v. McMillan, 49 Fla. 243, 38 So. 666 (records of deeds, etc.).
1903, Marsh v. Sanders, 110 La. 726, 34 So. 752 (poll-tax books).
1906, State v. Grimes, 29 Nev. 50, 84 Pac. 1061 (collecting the cases).
1906, Clement v. Graham, 78 Vt. 290, 63 Atl. 146 (State auditor's vouchers).
1904, Payne v. Staunton, 55 W. Va. 202. 46 S. E. 927.
[Note 4 ; add :]
1903, Merritt v. Copper Crown Co., 36 N. Sc. 383.
1910, Venner v. Chicago City R. Co., 246 111. 170, 92 N. E. 643.
1912, White v. Manter, 109 Me. 408, 84 Atl. 890.
1907, Hub Construction Co. v. New England B. Club, 74 N. H. 282, 67 Atl. 574.
1905, Guthrie v. Harkness, 199 U. S. 148, 26 Sup. 4.
[Note 11; add:]
1904, Alabama G. I. School v. Reynolds, 143 Ala. 579, 42 So. 114 (books kept by a party in
a fiduciary relation are subject to inspection for pending litigation, irrespective of the
general limitations of discovery in equity).
[Note 14; add:]
1904, Boulton v. Houlder, 1 K. B. 784 (action to recover insurance money paid in excess ;
the plaintiff was allowed discovery of certain ship's papers; practice in insurance cases
reviewed).
[Note 16; add:]
1911, Com. V. Jordan, 207 Mass. 259, 93 N. E. 809 (cited post, § 1862, n. 8).
In Farnham v. Colman, 19 S. D. 342, 103 N. W. 161 (1905), where the defendant, charged
with murder, asked mandamus against the committing magistrate to compel the State's
attorney to produce a written dying declaration, which he had refused to produce on
subpoena, the refusal of the writ was placed on other grounds. Compare § 1850, n. 4,
ante.
431
§ 1859 DISCOVERY BEFORE TRIAL
§ 1859. Inspection under Statutes.
[Note 4, par. 1 ; add ;]
111. St. 1907, June 3, p. 443, § 34 (re-enacts the foregoing c. 110, § 20).
In West Virginia, the common-law practice may still be invoked : 1905, Riley v. Yost,
68 W. Va. 213, 52 S. E. 40.
{Note 5, par. 2 ; <xM:]
Alberta: the method prescribed by St. 1910, 2d sess., Evidence Act, c. 3, § 50 (quoted
ante, § 1223), is applicable also to documents in the opponent's possession, being larger in
scope.
Br. C. St. 1905, 5 Edw. VII, c. 14, § 87 (county courts).
Man. St. 1906, 5 & 6 Edw. VII, c. 17, § 4 (amends Rev. St. 1902, c. 40, Rule 392, as to mode
of service, and amends Rule 421, as to penalty for refusal to produce).
St. 1909, 9 Edw. VII, c. 14, R?| (amending Rule 414 of the King's Bench Act, so as to forbid
the subsequent use of a document by one refusing without excuse to make discovery).
Newf. St. 1904, c. 3, Rules of Court 28.
Yukon Consol. Ord. 1902, c. 17 (Judicature), Ord. XX, RR. 190-199 (similar to N. W. Terr.)
[Note 6; add:]
Colo. St. 1903, c. 181, § 160 ("the books and accounts of any deceased person or mental
incompetent shall be subject to the inspection of all persons interested therein").
Conn. St. 1889, c. 22, Gen. St. 1902, §§ 732-737.
Ga. : 1904, Branan v. Nashville C. & St. L. R. Co., 119 Ga. 738, 46 S. E. 882 (Code applied).
III. : 1904, Swedish-American Tel. Co. ■». Fidelity & C. Co., 208 lU. 562, 70 N. E. 768
(provided the terms of the order require the exhibition of relevant documents and entries
only, the statute is not unconstitutional ; here, the books of an insured, in an action by a
liability-insurer, were produced to show the date on which the premium was agreed to be
based ; but there is no occasion for invoking the Constitution to limit such statutes).
Ind. St. 1907, c. 243, p. 490, Mar. 11, § 6 (civil remedies for monopoly injuries) ;
Kan. St. 1907, c. 259, p. 410, Mar. 9 (anti-trust law) ; St. 1909, c. 113, p. 213, Mar. 12
(non-resident party).
Mass. St. 1913, c. 815 (quoted ante, § 1856, n.) ; re-casting and superseding Rev. L. c. 173,
§§ 57-67, c. 159, §§ 15, 16, and later acts).
N. J. St. 1912, c. 231 (Practice Act Supplement), Schedule A, Rules of Court No. 66 ("Any
party may without affidavit apply for an order directing any other party to make dis-
covery on oath of the books, papers, or other documents, which are or have been in his
possession or under his control relating to any matter in question in the cause. The granting
of the order shall be discretionary, as to the whole or any part of the discovery applied f or ") .
N. Y. St. 1913, c. 86, p. 152 (amending C. C. P. § 803, by providing for photographs).
N. C. Rev. 1905, § 1656 (like Code 1883, § 578) ; 1905, Mills v. Biscoe L. Co., 139 N. C. 524,
62 S. E. 200 (procedure of inspection considered).
S. D. : 1909, McGeary s. Brown, 23 S. D. 573, 122 N. W. 606 (statute applied).
U. S. : 1909 Hammond Packing Co. v. Arkansas, 212 U. S. 322, 29 Sup. 370 (an order under
the Arkansas Anti-Trust Act of 1906, striking out an answer of refusal and entering judg-
ment by default, held not a violation of the 14th Federal Amendment). Equity Rules
1912, Rule 58.
Wash.: 1906, Lawson v. Black Diamond C. M. Co., 44 Wash. 26, 86 Pac. 1120 (Codes &
Stats. 1897, § 6047, construed in relation to ib. §§ 6009, 6113, providing for giving judgment
against a party refusing to answer interrogatories discovering documents).
[Note 8; add:]
1907, Casaatt v. Mitchell C. & C. Co., C. C. A. 150 Fed. 32, 39 (careful but uncon-
vincing opinion by Lanning, J.; Buffington, J., partly dissenting).
432
DISCOVERY BEFORE TRIAL § 1859
[Note 8 — contirmed]
1907, Webster Coal & C. Co. v. Cassatt, 207 U. S. 181, 28 Sup. 108 (reversing Cassatt v.
Mitchell C. & C. Co., supra, but on another point).
1911, Carpenter v. Winn, 221 U. S. 633, 31 Sup. 683 (commented on in 111. L. Rev. VI, 266).
[Note 10, par. 1 ; add, under Accord :]
1904, Swedish-American Tel. Co. v. Fidelity & C. Co., 208 111. 562, 70 N. E. 768 (Lester v.
People, infra, repudiated ; the power is to require production, "whether before the trial,
for the purpose of preparing for the same, or at the trial, to be used as evidence" ; "Sect. 9
was intended in actions at law to be a substitute for the bill of discovery").
[Note 10 ; add a new paragraph :]
In the Federal practice, the applicant is allowed to take a copy of the document produced
and inspected ; and a photographic copy where useful may equally be allowed :
1907, Newcomb v. Burbank, C. C. S. D. N. Y., 159 Fed. 568 (forgery of a grant of securities).
[Note 12; add:]
So, too, now in Massachusetts :
1912, Looney v. Saltonstall, 212 Mass. 69, 98 N. E. 698 (semble, under St. 1909, c. 225,
quoted ante, § 1856, N. 7, the discovery is not limited to the party's own case).
[Note 14, par. 1 ; add :]
1906, Nelson & Sons v. Nelson Line, 2 K. B. 217 (discovery from a nominal plaintiff).
1910, Von Ferber v. Enright, 19 Man. 383 ( a party is still "not entitled to discovery of the
evidence which relates exclusively to the case of the opposite party").
[Note 14, par. 2, 1. 7; add:]
British Ass'n of Glass Bottle Mfrers. v. Nettlefold, [1912] A. C. 709.
1912, Stapley v. Canadian P. R. Co., Alta. S. C, 6 D. L. R. 97, 180.
1912, MacMahon v. Railway P. Ass. Co., Ont. H. C. J., 5 D. L. R. 423 (cross-examination of
the opponent ; learned opinion by Riddell, J. ).
[Note 14, par. 2,1.9: add:]
1906, Nelson v. U. S., 201 U. S. 92, 26 Sup. 358.
[Note 14, par. 2, at the end ; add:]
Another question arising under these statutes is the burden of proof where the opponent
denies possession :
1908, Schlesinger v. ElKnger, 134 Wis. 397, 114 N. W. 825. ,
Whether the applicant party may himself make the copy from the document at the office of
the producing party, or whether he is obliged to be satisfied with a copy made and furnished
by the latter, is an interesting and often important point of practice : 1905, Ormerod v. St.
George's Ironworks, 1 Ch. 505 (approving the former alternative).
[Note 14 ; at the end, add a new paragraph :]
The relevancy of the documents shown must be as fully shown, under the statutory rule,
as under the former Chancery practice :
1908, Oro W. L. & P. Co. v. OroviUe, C. C. N. D. Cal., 162 Fed. 975.
But this ruling seems an unfortunate loss of an opportunity for progress ; the old Chancery
practice of discovery was a stench on the threshold of justice ; why keep any of its nauseous
elements? Compare the simple practice under a subpoena d. t. against a thu'd person
(post, § 2200, n. 6).
The primitive and childish technicality with which some Courts still handle this part of
procedure may be seen in the following ruling, dated not 1414, nor 1814, but 1914 : State v.
433
§ 1859 DISCOVERY BEFORE TRIAL
[Note 14 — (
Trimble, — Mo. — , 163 S. W. 860 (appeal from an order granting discovery to plaintiff ;
the action was for the death of a track-watchman, said to have been killed by train No. 6
running with no headlight ; the discovery asked for covered all train sheets, etc., as to all
trains on that night at .that place, but the discovery conceded by defendant covered
only train sheets, etc., for No. 6 ; held that the order of the trial judge granting the plaintiff's
request was "absolutely null and void," unamendable and incurable, by reason of its ex-
cessive scope; any the sUghtest excess in discovery-orders beyond the exact limits of the
legislative authority being a Violation of the Constitution ; the opinion must be read to be
appreciated ; here maybe noted that its doctrine not only commits the absurdity of declaring
civil discovery protectible under the Constitution, but humiliates the Judiciary by announc-
ing that the Legislature in its statute on this subject "limits the authority of the Courts
of this State" ; if Courts had assumed more of their legitimate authority in the machinery
of justice, and less of their improper interference in economic matters, the nation would be
better off).
[Note 15; add:]
1907, L'Amie v. Wilson, 2 Ir. R. 130 (applying St. 1879, 42 Vict., Bankers' Books' Evidence
Act, c. 11, § 7, as to the mode of obtaining inspection of a third person's account in a bank)!
The following ruling holds such a statute to be constitutional : 1906, Washington Nat'l Bank
V. Daily, 166 Ind. 631, 77 N. E. 53 (cited post, § 2193, n. 3).
[Note 17; cM:]
Alta. St. 1910, 2d sess., c. 3, § 50 (cited arete, § 1223).
Br. C. St. 1903-4, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, § 2 (repeals § 20 of
Rev. St. 1897, c. 71, and substitutes another requirement, as quoted ante, § 1639, n. 2).
N. Sc. Rev. St. 1900, c. 163, § 22 (probated wills ; cited ante, § 1681).
Sask. St. 1907, c. 12, § 21 (cited ante, § 1223).
Yukon St. 1904, c. 5, § 23 (probated wills; cited ante, § 1681).
[Text, p. 2450 ; at the end, add a new par. (5) :]
(5) In criminal cases some States have by statute made applicable the dis-
covery and inspection rules of par. (a) and (&) swpra}^
18 1910, State v. Hinkley, 81 Kan. 838, 106 Pac. 1088 (applying Cr. C. § 209, Gen. St.
1901, § 5651).
§ 1860. Same : Other Principles discriminated.
[Text, par. (3), at the end ; add a new note 2 :]
2 For rulings applying these statutes, see ante, § 1210, n. 2.
§ 1861. Document shown to Opponent at Trial.
[iV^ote 1, par. 1; add, u-aAer Accord:]
1905, State v. Rogers, 115 La. 164, 38 So. 952 (here the ruling, that the opponent is entitled
to see a contradictory letter before the witness answers whether it is his, seems over-
strict).
1913, Eckels 8s S. I. M. Co. v. Cornell E. Co., 119 Md. 107, 86 Atl. 38 (rule held not applicable
to a printed article used improperly on cross-examination of an expert under § 1700, ante).
[Note 1, par. 1 ; add, under Contra:]
1914, Com. ji Dorr, 216 Mass. 314, 103 N. E. 902 ; (in the trial Court's discretion).
434
DISCOVERY BEFORE TRIAL ' § 1869
§ 1862. Premises, Chattels, etc. ; Inspection before Trial.
[Noted; add:]
1907, Mutual Life Ins. Co. v. Griesa, C. C. Kansas, 156 Fed. 398 (bill in equity to cancel a
policy of life insurance ; the deceased was killed by falling from the roof of his house ; the
issue was whether he had taken morphine, just previously, with intent to suicide thereby,
and had deliberately thrown himself from the roof to conceal the suicide ; the insurer ap-
plied for an order to exhume the body of the debeased ; granted, in a scholarly and sensible
opinion by Smith McPherson, J. ; the order directed the appointment of a pathologist to
examine for the effect of the fall, and a chemist to examine for morphine ; the opinion repu-
diates a privilege protecting from such disclosure).
1909, Griesa v. Mutual Life Ins. Co., 8th C. C. A., 169 Fed. 509 (same case on appeal ;
point not decided).
Compare also the cases cited ante, § 2194, and post, § 2220.
[Note 7; add:]
1910, Danahy v. Kellogg, 126 N. Y. Suppl. 444 (action for death in an automobile col-
Usion ; the defendant asked for an order to permit exhumation of the body and examination
by the microscope to discover whether death resulted from heart disease independently
existing ; denied ; "we base our decision squarely on the absence of any right or authority
in the court to grant the inspection asked," i.e. under the Code of Civil Procedure).
[Note 8; add:]
1911, Com. V. Jordan, 207 Mass. 259, 93 N. E. 809 (defendant not entitled to a copy of the
autopsy report or to an opportunity to inspect weapons etc. in the prosecutor's possession,
apart from his right to a bill of particulars to enable hun to prepare his defence ; the rule thus
announced is needlessly harsh on defendants, and should not be accepted elsewhere; to
lay down such a rule at the present day shocks one's sense of reasonableness).
[Note 9; add:]
Newf. St. 1904, c. 3, Rules of Court 46, par. 4 (like Eng. Rules of 1883, Ord. 50, rule 3).
Mont. : 1903, Heinze (State ex rel.) v. District Court, 29 Mont. 105, 74 Pac. 132 (Parrot S. &
C. Co. V. District Court, supra, followed ; Hollaway, J., diss.). 1904, Mendenhall (State ex
rel.) V. District Court, 29 Mont. 363, 74 Pac. 1078 (preUminary conditions for an order
determined). 1904, Boston & M. C. C. & S. M. Co. (State ex rel.) v. District Court, 30
Mont. 206, 76 Pac. 206 (preliminary conditions for an order, determined).
Wis. : 1913, Horlick's Malted Milk Co. v. Spiegel Co., 155 Wis. 201, 144 N. W. 272 (action
for unfair competition ; the plaintiff had obtained some evidence of the defendant's methods
by buying at the defendant's store bottles in which the defendant was selling its product
under the defendant's name, and the defendant asked for inspection of these bottles, etc. ;
allowed).
§ 1867. Order of Evidence ; Trial Court's Discretion.
[Note 2; add:]
1912, Baltimore C. & A. R. Co. v. Moon, 118, Md. 380, 84 Atl. 536.
1906, People v. Tollefson, 145 Mich. 449, 108 N. W. 751 (forgery).
1907, State v. Taylor, 202 Mo. 1, 100 S. W. 41.
1907, State v. Werner, 16 N. D. 83, 112 N. W. 60.
1909, Crosby v. Portland R. Co., 53 Or. 496, 101 Pac. 204.
§ 1869. Proponent's Case in Chief, etc.
[Note 2; add:] •
1908, Decatur v. Vaughan, 233 III. 50, 84 N. E. 50.
1912, Knight v. State, 64 Tex. Cr. 641, 144 S. W. 967 (the woman's chastity, in seduction).
435
I 1869 SIMPLIFICATIVE RULES
[iVofe 4, 1.12; add:]
1903, Savage v. Bulger, — Ky. — , 77 S. W. 717 (party admitted in rebuttal).
1906, Burkhardt v. Loughridge, 124 Ky. 48, 98 S. W. 291 (rule applied to depositions).
1910, Continental Ins. Co. v. Ford, 140 Ky. 406, 131 S. W. 189 (rule held not to prohibit the
party's testimony where already his counsel had on cross-examination entered upon new
matter).
In England, the same rule is now applied, under St. 1898 (quoted ante, § 488) to the accused :
•1911, Morrison's Case, 6 Cr. App. 159, 165 (L. C. J. Alverstone : "In all cases I consider it
most important for the prisoner to be called before any of his witnesses ") .
§ 1871. Same : Conditional Relevancy, etc.
[N^ote 1, par. 1 ; add:]
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127.
[Note 2, par. 2, at the end ; add:]
Compare the rule for counsel making offers which they know will not be sustained, and
stating in argument matters of which no evidence has been introduced (ante, § 1810).
[Note 3, par. 1 ; add:]
1908, Putnal v. State, 56 Fla. 86, 47 So. 864. 1909, Atlantic Coast Line R. Co. v. Partridge,
58 Fla. 153, 50 So. 634.
1905, Campbell v. Railway Transfer Co., 95 Minn. 375, 104 N. W. 547.
1907, State v. Arnold, 206 Mo. 589, 105 S. W. 641.
1904, Earnhardt v. Clement, 137 N. C. 91, 49 S. E. 49.
[Note 4; add:]
1906, State v. Green, 115 La. 1041, 40 So. 451 (identifying a pistol).
[Note 5; add:]
1907, Ross V. State, 169 Ind. 388, 82 N. E. 781.
[Note 6, par. 2, at the end ; add :]
1906, Hix V. GuUey, 124 Ga. 547, 52 S. E. 890. 1907, Sasser v. State, 129 Ga. 541, 59 S. E.
255.
1906, Tinkle v. Wallace, 167 Ind. 382, 79 N. E. 365 (bribery). 1908, Dorn & McGinty v.
Cooper, 139 la. 742, 117 N. W. 1.
1906, Putnam v. Harris, 193 Mass. 58, 78 N. E. 747 ("It is more correct to say that the
exception will not be sustained unless the fact that the evidence admitted de bene had not
been properly connected afterwards was brought to the attention of the Court and a further
ruling on that ground asked for"). 1908, Com. v. Johnson, 199 Mass. 65, 85 N. E. 188
(narrative of conversations held proper on the facts).
1903, Jones v. Peterson, 44 Or. 161, 74 Pac. 661.
Contra: 1906, Root v. Kansas C. S. R. Co., 195 Mo. 348, 92 S. W. 621.
Not clear: 1906, Pittman v. State, 51 Fla. 94, 41 So. 385 (opinion reading both ways).
Examples of the striking out of evidence where the promise to connect has not,been fulfilled :
1912, People v. Smith, 254 111. 167, 98 N. E. 281 (purchase of a pistol not connected with
the one in issue).
[Note 8; add:]
1906, Brown v. State, 88 Miss. 166, 40 So. 737.
436
ORDER OF EVIDENCE | 1873
§ 1872. Opponent's Case in Reply, etc.
[Note 3 ; add :] ,
1904, Conant v. Jones, 120 Ga. 568, 48 S. E. 234.
§ 1873. Proponent's Case in Rebuttal.
[Note 1; add:]
1911, R. V. Crippen, 1 K. B. 149 (careful statement; but unfortunately not discriminating
between this case and that of § 1877, post).
1904, R. V. Wong On, 10 Br. C. 555 (alibi).
1902, R. V. Higgins, 35 N. Br. 18, 30.
1907, Nicholson v. State, 149 Ala. 61, 42 So. 1015.
1904, Vincent v. Mutual R. F. L. Ass'n, 77 Conn. 281, 58 Atl. 963 (age, in an insurance
policy). 1904, McAllin v. McAllin, 77 Conn. 398, 59 Atl. 413.
1909, Jenkins v. State, 58 Fla. 62, 50 So. 582. 1911, Johnson v. Rhodes, 62 Fla. 220, 56
So. 439.
1904, Lo Toon v. Terr., 16 Haw. 351, 357 (alibi).
1905, State v. Wain, 14 Ida. 1, 80 Pac. 221.
1908, Floto V. Floto, 233 111. 605, 84 N. E. 712. 1910, Albrecht v. Hittle, 248 lU. 72, 93
N. E. 351 (the proponent of a will must offer his expert witnesses on the case in chief, but
in rebuttal he may offer expert opinion on the contestant's evidence).
Ind. St. 1905, p. 584, § 260 (Rev. St. 1897, § 1914, re-enacted). 1906, Tinkle v. Wallace,
167 Ind. 382, 79 N. E. 355.
1905, State v. Seligman, 127 la. 415, 103 N. W. 357. 1906, State v. Thomas, 135 la. 177,
109 N. W. 900.
1890, Williams v. Com., 90 Ky. 596, 14 S. W. 595 (here the Court disparages too easily the
trial Court's ruling, on the theory that no discretion was actually exercised). 1904, Fletcher
V. Com.,— Ky., — 83 S. W. 588 (Williams v. Com. approved). 1905, Tetterton v. Com.,—
Ky.,— 89 S. W. 8. 1912, Bennett v. Com., 150 Ky. 604, 150 S. W. 806. 1913, Smith v.
Com., 154 Ky. 613, 157 S. W. 1089.
1905, State v. Boice, 114 La. 856, 38 So. 584. 1906, State v. Johnson, 116 La. 30, 40 So. 521.;
1906, State v. Douglas, 116 La. 524, 40 So. 860. 1907, State v. Heidelberg, 120 La. 300,
45 So. 256. 1913, State v. Bellard, 132 La. 491, 61 So. 537.
1904, Burnside v. Everett, 186 Mass. 4, 71 N. E. 82.
1906, People v. Harper, 145 Mich. 402, 108 N. W. 688 (corpus delicti and eye witnesses ;
here, in a technical and ill-advised opinion, citing no authority, the Supreme Court unjusti-
fiably interferes with the trial Court's discretion).
1904, Flowers v. State, 85 Miss. 591, 37 So. 814.
1904, Maloney v. King, 30 Mont. 158, 76 Pac. 4.
1906, State v. Miles, 199 Mo. 530, 98 S. W. 25. 1910, Seibel-Suessdorf C. & I. M. Co. v.
Manufacturers' R. Co., 230 Mo. 59, 130 S. W. 288.
1905, Willett V. Morse,,— N. J. L. — , 60 Atl. 362.
1905, Petersburg School Dist. v. Peterson, 14 N. D. 344, 103 N. W. 756.
1904, Cochran v. U. S.\ 14 Okl. 108, 76 Pac. 672.
1843, Smith v. Britton, 4 Humph. 201.
1905, Union R. Co. v. Hunton, 114 Tenn. 609, 88 S. W. 182.
1904, Wilmoth v. Hamilton, 127 Fed. 48, 61 C. C. A. 584.
1904, Schissler v. State, 122 Wis. 365, 99 N. W. 593 (sanity). 1905, Steward v. State, 124
Wis. 623, 102 N. W. 1079 (sanity).
1911, Russell V. State, 19 Wyo. 272, 116 Pac. 451.
[Note 6, par. 1; add:]
1911, Roberts v. State, 25 Del. Boyce 385, 79 Atl. 396.
437
I 1874 ORDER OF EVIDENCE
§ 1874. Opponent's Case in Surrebuttal.
[Note 1; add:]
1905, State v. Forsha, 190 Mo. 296, 88 S. W. 746 (the rule applies equally to a defendant
who did not testify in chief for the defence but offers himself in surrebuttal).
§ 1876. Case Closed : (1) Offeror's Case alone Closed.
[Note 1 ; add :]
1911, Foster's Case, 6 Cr. App. 196.
1908, Central National Bank v. National Metropolitan Bank, 31 D. C. App. 391.
1905, Brooke v. Lowe, 122 Ga. 358, 50 S. E. 146. 1908, EUenberg v. Southern R. Co., 5
Ga. App. 389, 63 S. E. 240. 1911, Wickham v. Torley, 136 Ga. 594, 71 S. E. 881.
1904, Hauser v. People, 210 lU. 253, 71 N. E. 416.
1904, Hill V. Glenwood, 124 la. 479, 100 N. W. 522.
1906, State v. Rodriguez, 115 La. 1004, 40 So. 438. 1906, State v. Goodson, 116 La. 388,
40 So. 771.
1904, Schilling v. Curran, 30 Mont. 370, 76 Pac. 998.
1904, Davis v. Collins, 69 S. C. 460, 48 S. E. 469.
1906, Pocahontas C. Co. v. Williams, 105 Va. 708, 54 S. E. 868.
§ 1877. Same : (2) Case of Both Parties Closed.
[Note 1 ; add :]
1904, Ailing v. Weissman, 77 Conn. 394, 59 Atl. 419.
1906, Bridger v. Exchange Bank, 126 Ga. 821, 56 S. E. 97 (during argument on a motion
to direct a verdict).
1887, Tucker v. People, 122 111. 583, 593, 1^3 N. E. 809.
1906, People v. Wiemers, 225 111. 17, 80 N. E. 45 (trial without a jury).
1905, State v. Sexton, 37 Wash. 110, 79 Pac. 634.
§ 1878. After Argtunent Begun.
[Note 1 ; add ;]
1905, Robinson v. State, 50 Fla. 115, 39 So. 465. 1909, Charles v. State, 58 Fla. 17, 50 So. 419.
1905, Roberts v. State, 123 Ga. 146, 51 S. E. 374. 1906, Bundrick v. State, 125 Ga. 753,
54 S. E. 683.
1909, People v. Blake, 157 Mich. 633, 122 N. W. 113.
1904, Blair v. State, 72 Nebr. 501, 101 N. W. 17.
1901, Harvey v. Terr., 11 Okl. 156, 65 Pac. 837.
1906, Jones v. State, 50 Tex. Cr. 194, 95 S. W. 1044.
1906, Cincinnati N. O. & T. R. Co. v. Cox, 143 Fed. 110, C. C. A.
§ 1879. After Judge's Charge Given.
[Note 1, par. 1 ; add:]
1906, Todd V. Crail, 167 Ind. 48, 77 N. E. 402 (judge sitting without a jury).
1905, Parker v. Ricks, 114 La. 942, 38 So. 687 (after cause submitted to judge).
§ 1880. After Jury Retired.
[Note 1 ; add:]
1910, Gamer v. State, 97 Ark. 63, 132 S. W. 1010.
1906, Watson v. Barnes, 125 Ga. 733, 54 S. E. 723.
1912, People v. Ferrone, 204 N. Y. 551, 98 N. E. 8.
438
ORDER OF EVIDENCE § i890
§ 1884. Cross-Ezamination in General, etc.
[Note 1 ; add, as Accord :]
1905, Miller v. Carnes, 95 Minn. 179, 103 N. W. 877.
But where the party opponent is called, under the statutes (ante, § 916) permitting liim
to be treated as if on cross-examination, this is perhaps to be regarded as a stage in itself,
so that the opponent cannot thereupon as of right testify further for himself, as if on redirect
examination ; the trial Court may therefore require him to wait till his own case is put in :
1900, Jones v. Bradford, 79 Minn. 396, 82 N. W. 651. 1904, Olson v. Aubolee, 92 Minn. 312
99 N. W. 1128.
[Note 6, par. 1 ; add, under Contra :]
1905, Armour Packing Co. v. V. Y. Produce Co., — Ala. — , 39 So. 680, semble (the docu-
ment cannot be put in until the cross-examiner's own case is opened).
[Note 6, after par. 2 ; add :]
Otherwise, naturally, in Courts which do not accept the orthodox rule for cross-exami-
nation : 1903, Kroetch v. Empire M. Co., 9 Ida. 277, 74 Pac. 868 ("The practice of allowing
a party to identify and introduce exhibits on cross-examination of his adversarj''s witness
. . . should seldom be permitted").
§ 1890. Cross-Ezaminingto One's Own Case ; Law in Various Jurisdictions.
[Note 3; add:]
Canada : B. C. St. 1903-4, 3 & 4 Edw. VII, c. 18, Evidence Act Amendment Act, § 4 (re-
peals St. 1902, c. 22, § 6) ; this part of the repeal is an unfortunate step backwards, and
should be reconsidered.
Man. St. 1906, 5 & 6 Edw. VII, c. 17, § 2 (amends Rev. St. 1902, c. 40, by adding Rule 460
A, that a party, etc. to a civil action "may be examined upon the trial thereof as if under
cross-examination at the instance of the adverse party or parties, or any of them, and for
that piu-pose may be compelled in the same manner, and subject to the same rules for ex-
amination, as any other witness to testify, but the party calling for such examination shall
not be concluded thereby, but may rebut it by counter-testimony").
United States : Ark. : 1909, St. Louis I. M. & S. R. Co. v. Raines, 90 Ark. 398, 119 S. W.
€65 (Austin v. State cited ; but the trial Court's discretion is conceded).
Cal. (rule for an accused) : 1904, People v. Teshara, 141 Cal. 633, 75 Pac. 338 (like People
V. McMuUings, with qualifications). 1904, People v. Podilla, 143 Cal. 158, 76 Pac. 889
(rule applied in a bigoted fashion to prevent the impeachment of witnesses of the defend-
ant). 1904, People v. Buckley, 143 Cal. 375, 77 Pac. 169. 1906, People v. Soeder, 150
Cal. 12, 87 Pac. 1016 (similar to People v. MuUings).
1908, People v. Schmitz, 7 Cal. App. 330, 94 Pac. 407 (an example of the senselessness of
the Federal rule, and the litigious gambling which it encourages).
Conn. : 1905, Nichols v. Wentz, 78 Com. 429, 62 Atl. 610 (rule applied to testimony to the
execution of a will).
Fla. : 1905, Hampton «. State, 50 Fla. 55, 39 So. 421 (rule applied). 1912, Padgett v.
State, 64 Fla. 389, 59 So. 947 (discretion of trial Court emphasized).
Haw.: 1904, Ahmi v. Waller, 15 Haw. 497, 501 (Booth v. Buckley, approved). 1904,
Flint V. Flint, ib. 313 (similar).
Ida. : St. 1909, p. 334, Mar. 13 (quoted ante, § 916, n. 2).
Ill: 1903, Spohr v. Chicago, 206 111. 441, 69 N. E. 515 (but the trial Court has a "large
discretion"). 1904, Dick v. Zimmermann, 207 id. 636, 69 N. E. 754. 1904, Chicago City
R. Co. V. Creech, 207 111. 37, 69 N. E. 919 (the cross-examiner may "elicit suppressed facts
which weaken or qualify the case of the party introducing the witness or supporting the
case of the party cross-examining" ; no precedents cited). 1909, Schmidt «. Chicago City
439
§ 1890 ORDER OF EVIDENCE
[Note 3 — continued]
R. Co., 239 III. 494, 88 N. E. 275 (after direct examination to a custom of intersecting
street-railroads to give the right of way to the car which first arrived within 200 feet, a
cross-examination as to the length of time required to run 200 feet, etc., would be un-
proper ; this illustrfites the quibbling unpracticalness of the rule).
Ind.: 1906, Osburn v. State, 164 Ind. 262, 73 N. E. 601 ("When the direct examination
opens on a general subject, the cross-examination may go into any phase of that subject" ;
said of the accused's conversations). 1905, Westfall v. Wait, 165 Ind. 353, 73 N. E.
1089 (same rule, applied to testimony to a testator's sanity). 1907, Eacock v. State,
169 Ind. 488, 82 N. E. 1039 (the trial Court's discretion controls). 1912, Crawfordsville
Trust Co. V. Ramsay, 178 Ind. 258, 98 N. E. 177 (probate of a will ; the testator's physi-
cian being examined by the plaintiffs on matters not involving sanity, the Opponents on
cross-examination asked the physician's opinion as to the testator's sanity ; the trial
Court's discretion in excluding this was held correctly exercised ; it was right to leave the
matter to the trial Coiurt's discretion ; but the ruling of the trial Court shows the absurdity
of thfe present rule in practice).
Ind. Terr. : 1905, Miller v. Springfield W. Co., 6 Ind. T. 115, 89 S. W. 1011 (under Annot.
St. 1899, § 2012, the trial Court may allow cross-examination on matters not touched on in
the direct examination).
La.: 1912, State v. Oden, 130 La. 598, 58 So. 351 (illegal liquor-selling; here the startling
result was reached that unless the accused does on direct examination say something about
having a Federal revenue liquor license — and would he mention it, unless he went gae daft
on the stand ? — he cannot be asked about it on cross-examination ; this ruling effectually
removes from the defendant's mind a really disagreeable dilemma — perjury or discovery
^in taking the witness stand). 1913, State v. Bellard, 132 L^. 491, 61 So. 537 (opinion
not entirely clear).
Mich.: St. 1909, No. 307, p. 753, June 2 (quoted ante, § 916, n. 2).
Miss. : 1905, Walton v. State, 87 Miss. 296, 39 So. 689 (rule applied).
Mo.: For the general rule: 1905, Ayers s. Wabash R. Co., 190 Mo. 228, 88 S. W. 608
("What is called the 'orthodox rule' has always been the rule in this State"); for an
accused: 1905, State v. Wertz, 191 Mo. 569, 90 S. W. 838 (State v. Avery approved). 1906,
State V. Feeley, 194 Mo. 300, 92 S. W. 663 (rule applied). 1906, State v. Barrington, 198 Mo.
23, 95 S. W. 235 (rule applied). The following statute has now intervened : St. 1905,
Apr. 6, p. 307 (inserting a new § 4655o into Rev. St. 1899, as follows : "A party to a cause,
civil or criminal, against whom a witness has been called and given some evidence, shall
be entitled to cross-examine said witness (except where a defendant in a criminal case is
testifying in his own behalf) on the entire case ; but this shall not be construed to entitle
a defendant who has pleaded a counterclaim or set-off in a civil case to cross-examine a
plaintiff's witness in respect thereto, but as to said counterclaim or set-oif such witness (if
examined by defendant in relation thereto) shall be deemed defendant's witness and be so
examined in the course of the trial"; of this statute, only the second part has anything
that could be construed as a change in the law; and such petty tinkering is impolitic, es-
pecially when it is based on the erroneous theory noted ante, § 1887, par. d). 1911, State
V. McDonough, 232 Mo. 219, 134 S. W. 545 (wife of defendant; choking off cross-exami-
nation to character by means of the present rule). 1913, State v. Foley, 247 Mo. 607, 153
S. W. 1010 (accused).
Mont. : 1904, State v. Howard, 30 Mont. 518, 77 Pac. 50. 1906, Borden v. Lynch, 34 Mont.
503, 87 Pac. 609 (consideration of a note ; the rule applies equally to a party-opponent) .
1912, State v. Biggs, 45 Mont. 400, 123 Pac. 410 (liberal rule, leaving much to the trial
Court's discretion).
N. J. : 1907, Crosby v. Wells, 73 N. J. L. 790, 67 Atl. 295 (cross-examination not restrictfed
to matters of the direct examination, in case of a deposition taken out of the State under
P. L. 1900, p. 375, formerly § 38 of St. 1874, Mar. 27, on Evidence). 1908, Axel v. Kraemer,
75 N. J. L. 688, 70 Atl. 367 (Crosby v. Wells followed). 1909, Prout v. Bernards L. & S.
440
ORDER OF EVIDENCE § 1890
[Note 3 — continued]
Co., 77 N. J. L. 719, 73 Atl. 486 ("As to matters directly in issue or directly relevant to the
issue, there is no discretionary power"; this goes too far; the preceding cases are not
cited, and the distinction between other rules and the present rule is apparently not per-
ceived).
N. D. : 1899, Kaeppler v. Red R. V. N. Bank, 8 N. D. 406, 410, 79 N. W. 869 (strict rule
applied, though "much discretion should be given"). 1904, Hogen v. Klabo, 13 N. D. 319,
100 N. W. 847 (rule apphed to an issue of payment on notes in a suit for a balance due ;
foregoing case not cited). 1905, Schwoebel v. Fugina, 14 N. D. 375, 104 N. W. 848 (trial
Court's discretion controls ; moreover, "any fact in issue within the knowledge of the ad-
verse party may be proved by cross-examination of him").
1909, Leistikow ». Zuelsdorf, 18 N. D. 511, 122 N. W. 340 (the original unamended
pleading of the opponent, not admitted on cross-examination as an admission).
Okl.: 1904, Woods v. Faurot, 14 Okl. 171, 77 Pac. 346 (Federal rule illiberally ap-
plied).
Or. : 1904, Goltra v. Pentland, 46 Or. 254, 77 Pac. 129 (a good example of how the rule
helps to suppress truth and reduce a trial to a game).
Pa. : 1905, Quigley v. Thompson, 211 Pa. 107, 60 Atl. 506 (negligence; rule applied).
S. D. : 1895, State v. Bunker, 7 S. D. 639, 642, 65 N. W. 33 (trial Court's discretion controls ;
here the complaining witness in bastardy). 1911, Luick v. Arends, — N. D. — , 132 N. W.
353 (on plaintifE's calling an opponent for cross-examination, his own counsel should ordi-
narily reserve his re-direct examination until his own case is put in).
U. S. : 1899, Davis v. Coblens, 174 U. S. 719, 726, 19 Sup. 832 (rule of discretion applied).
1904, Resurrection G. M. Co. v. Fortune G. M. Co., 129 Fed. 668, 674, 681, 685, 64 C. C. A.
180 ("In the Courts of the United States, the party on whose behaK a witness is called has
the right to restrict his cross-examination to the subjects of his direct examination, and a
violation of this right is reversible error," per Sanborn, J. To speak here of "reversible
error" is to bow to the most bigoted fetish-like form of the rule ; in view of Wills v. Russell,
100 U. S., supra, such a doctrine in the Federal Circuit Court of Appeals is an anachronism,
as well as a reproach to the name of Justice. It is justly dissented from by Hook, J., who
declares for the pristine rule leaving this subject "generally a matter within the sound dis-
cretion of the trial Court" ; and by Thayer, J., who expressed the view that it was "over-
technical, unnecessary, and unwise" to invoke the rule of "reversible error"; it is to be
hoped that the opinion of these two judges will prevail in the practice of the Circuit Courts
of Appeals). 1904, Balliet i). U. S., 129 Fed. 689, 695, 64 C. C. A. 201 (rule applied to an
accused taking the stand). 1904, Garlich v. Northern P. R. Co., 131 Fed. 837, 67 C. C. A.
237 (cross-examination held proper on the facts). 1909, Harrold v. Terr., 8th C. C. A.,
169 Fed. 47 ("a violation of the right restricting cross-examination is reversible error,"
per Sanborn, J. ; this utterly reprehensible rule is justly protested against by Adams, J.,
who points out that it was expressly repudiated by a majority of the judges in this circuit
in Resurrection Gold M. Co. v. Fortune Gold M. Co., and in Balliet v. U. S., supra; the
persistent attempt to fix this bigoted rule on the circuit should be discountenanced). 1909,
St. Louis & S. F. R. Co. v. Cundieff, 8th C. C. A., 170 Fed. 319 (rule applied to a witness to
a raih-oad-crossing accident). 1910, iEolian Co. v. Standard M. R. Co., C. C. N. J., 176
Fed. 811 (rule applied). 1910, Ferry-Hallock Co. v. Orange H. B. Co., C. C. N. J., 185
Fed. 816 (rule applied to patent-infringement cases ; its absurdity is here illustrated).
Wash.: 1909, Kinnane v. Conroy, 52 Wash. 651, 101 Pac. 223 (trial Court's discre-
tion).
Wis. : 1905, Winn v. Itzel, 125 Wis. 19, 103 N. W. 220 ("In case the witness is also a party
to the action, a somewhat broader range is allowed"). 1912, Guse v. Power M. & M. Co.,
151 Wis. 400, 138 N. W. 195 (when an opponent is called for cross-examination as an adverse
witness, under Stats. 1898, § 4068, his counsel may then immediately re-examine him, but
not as to new matter forming his own case ; explaining O'Day v. Meyers, 147 Wis. 549, 133
N. W. 605).
441
§ 1891 ORDER OF EVIDENCE
§1891. Same: Qualifications of Each Rule.
[Note!; add:]
1907, Isaac v. U. S., 7 Ind. Terr. 196, 104 S. W. 588. '
§ 1893. Same : What Constitutes Calling a Witness, etc., on Ordinary
Subpoena, etc.
[Note 2; add, under Accord:]
1906, Harris v. Quincy O. & K. C. R. Co., 115 Mo. App. 527, 91 S. W. 1010.
[.Vote 6; add:]
1891, Achilles v. Achilles, 137 111. 589, 594, 28 N. E. 45 (party examined and cross-examined,
and the deposition excluded because of interest ; the cross-examination was then also held
inadmissible for the party).
1904, Bentley v. Bentley's Estate, 72 Nebr. 803, 101 N. W. 976.
[Note 7, 1. 1 ; add, under Accord :]
1905, McDonald v. Smith, 139 Mich. 211, 102 N. W. 668, semble.
1904, Gussner v. Hawks, 13 N. D. 453, 101 N. W. 898, semble.
§ 1895. Same : Other Principles of Evidence discriminated, etc.
[Text, 1. 5, after "stage" ; add a new note a:]
1906, Ayers v. Wabash R. Co., 190 Mo. 228, 88 S. W. 608 (Valliant, J., quoting this sen-
tence, adds, "That is really the only essential difference in effect between the two rules").
§ 1896. Re- Direct Examination.
[Note 1 ; add :]
Can.: 1903, R. ■». Noel, 6 Ont. L. R. 385 (Blewett v. Tregonning, followed).
Georgia: where the defendant in a criminal case merely makes a "statement" not under
oath, he may by consent be cross-examined "(posi, § 2276, n. 5), but he may not then be
re-examined by his own counsel, unless the trial Court in discretion so rules :
1877, Brown «. State, 58 Ga. 212. 1902, Walker v. State, 116 Ga. 539, 42 S. E. 787. 1912,
Lindsay, v. State, 138 Ga. 818, 76 S. E. 369.
Me. : 1904, Caven v. Bodwell G. Co., 99 Me. 278, 59 Atl. 285.
N. J. : 1911, Brown v. Harriot, 81 N. J. L. 484, 80 Atl. 479.
§ 1897. Re-Cross-Examination, and Later Stages.
[Note 1, par. 1 ; add :]
1909, Lapointe v. Berlin Mills Co., 75 N. H. 294, 73 Atl., 406 (here applied to plaintiff's
offer to exhibit his injured hand).
§ 1899. Recall for Re-Cross-Examination.
[Note 1; add:]
1904, Howard v. Com., 118 Ky. 1, 80 S. W. 211, 81 S. W. 704.
1904, People v. Hossler, 135 Mich. 384, 97 N. W. 754.
1913, State ». Fogleman, 164 N. C. 458, 79 S. E. 879.
442
WITNESSES CUMULATIVE, ETC. § 1908
§ 1908. Witnesses merely Cumulative, etc.
[Note 1 ; add :]
Dom. : 1906, Dodge v. The King, 38 Can. Sup. 149, 152 (statute noted ; but the strange
doubt is expressed whether if more ate improperly called the Court above may consider
their testimony).
Man. St. 1908, 7-8 Edw. VII, c. 18, § 1 (adding § 61 to Rev. St. c. 57, Evidence Act; not
more than three expert witnesses to be called on either side without leave of the judge;
such leave to be applied for before examination of any experts).
Out St. 1909, c. 43, § 10 (Uke St. 1902, c. 15, § 1). 1912, Rice v. Sockett, Ont. D. C, 8
D. L. R. 84 (contract to build a silo ; certain persons held experts, under the above statute,
now 9 Edw. VII, c. 43, § 10, though not having a special technical education).
iScwfc. St. 1907, c. 12, Evidence Act, § 37 (like Can. St. 1902, c. 9).
Mass. : 1904, White v. Boston, 186 Mass. 65, 71 N. E. 75 (the limited number having been
used, a lay witness of the opponent cannot be used as an expert on cross-examination).
Mich. St. 1905, No. 175 (limits the number to three on each side ; quoted in full ante,
§ 562, n. 1).
1910, People v. Dickerson, 164 Mich. 148, 129 N. W. 199 (St. 1905, No. 175, held uncon-
stitutional, but not as to the present point ; see the case more fully cited post, § 2484,
n. 1).
Mo. : 1906, St. Louis M. & S. E. R. Co. v. Aubuchon, 199 Mo. 352, 97 S. W. 867 (land
damages ; a ruling restricting the witnesses to four on each side, held unreasonable on the
facts; but the opinion, though citing nine cases from other jurisdictions and two cases
from an inferior court of Missouri, wholly ignores the four rulings in its own court, cited
infra, notes 2 and 3 ; the Court's remark that "we are cited to no case by respondent that
sustains such rule" will not properly account for such inattention to its own rulings, even
on the part of a Minos so recently enthroned and so brilliant and sensible as the one who
writes the opinion).
Wash. : 1904, Swope v. Seattle, 36 Wash. 113, 78 Pac. 607 (limitation to three witnesses to
real estate value, held proper in discretion).
[Note 2; add:]
1912, People v. Burke, 18 Cal. App. 72, 122 Pac. 435.
1911, People V. Arnold, 248 111. 169, 93 N. E. 786 (number limited to twenty-five on each
side).
1906, State v. Rodriguez, 115 La. 1004, 40 So. 438 (under St. 1894, No. 67, a limitation of
defendant's character-witnesses to six, with liberty to have process for more at his own
cost, held proper).
1909, State v. Madison, 23 S. D. 584, 122 N. W. 647- (impeaching witnesses here limited to
four on a side).
[Note 3; add:]
1907, State v. Uzzo, 6 Pen. Del. 212, 65 Atl. 775 (rule of Court limiting to sixi witnesses on
the same fact, held applicable in capital cases).
1909, Trometer v. District, 24 D. C. App. 242, 247 (wife's testimony on a certain point,
excluded as cumulative).
1909, West Skokie Drainage District v. Dawson, 243 111. 175, 90 N. E. 377 (obscure and
rambUng opinion ; apparently the rule accepted is that the trial Court's ruling cannot be,
made before testimony begun and cannot be made to include rebuttal testimony ; unsound
on both points).
1861, Calvert v. Carter, 18 Md. 73, 109 (obscure; but semble contra).
1909, Campbell v. Campbell, 30 R. I. 63, 73 Atl. 354 (limitation of the number of witnesses
to those specified by counsel as a condition of getting an adjournment, held unfair on the
facts; Blodgett, J., diss.; elaborate opinions, criticizing the various precedents).
443
§ 1908 WITNESS CUMULATIVE, ETC.
[Note 3 — continued]
1905, Carrara P. A. Co. v. Carrara P. Co., 137 Fed. 319, C. C. (depositions of 250 witnesses
were allowed, no special reason for limitation of number being shown).
[Note 4; add:]
For the argument as to a constitutional right to process, see ■post, § 2191.
§ 1909. Judge as Witness.
[Note, 5; add:]
Okl.: 1911, State ex rel. Nowakowski v. Lockridge, 6 Okl. Cr. 208, 118 Pac. 152 (that
a judge conducted the preliminary examination does not disqualify him from presiding at
the trial with the possibility of becoming a witness; the above text approved).
Or.: Codes & Gen. L. 1892, § 856 (hke Cal. C. C. P. § 1883, substituting "former case"
for "such case"). 1904, State «. Houghton, 45 Or. 110, 75 Pac. 887 (judge allowed to testify
on the question of a witness' self-contradiction on the former trial). 1909, State v. Finch,
■54 Or. 482, 103 Pac. 505 (judge's testimony on a trivial matter at the defendant's
instance, held not to require substitution of another judge). ^
Wash.: 1896, Maitland ii. Zanga (quoted supra). 1905, State v. Bringgold, 40 Wash. 12,
82 Pac. 132 (justice of the peace, allowed to testify to the proceedings on arraignment of
the now defendant).
§ 1910. Juror as Witness.
[Note 1, par. 1 ; add:]
Or.: Codes & Gen. L. 1892, § 856 (like C. C. P. § 1883, substituting "former case" for
"such case").
[Note 1, par. 4; add:]
Distinguish also the question whether a juror may at a subsequent trial disclose knowledge
obtained by him at a mew of premises on a former trial (post, § 2346).
§ 1911. Counsel or Attorney as Witness.
[Note 9; add:] .
Del. : 1910, Real Estate Trust Co. v. Wilmington & N. C. E. R. Co., 9 Del. Ch. 99, 77 Atl.
766 (counsel allowed to testify to service of notice on an opponent ; Pritchard v. Henderson
cited as if discredited ; the opinion seems unaware of the radical distinction between the
present question and that of § 2312, post).
III. : 1907, Wilkinson v. People, 226 111. 135, 80 N. E. 699 (prior rulings approved, and "the
unenviable attitude of a willing witness and a zealous attorney" commented on). 1907,
Bishop V. Hilliard, 227 111. 382, 81 N. E. 403. 1908, Onstott v. Edel, 232 III. 201, 83 N. E.
806; 1908, McConnell v. Brown, 232 111. 336, 83 N. E. 854. 1908, Glanz v. Zinbek, 233
111. 22, 84 N. E. 36 (attorney admitted, but practice disparaged). 1909, R«avely v. Harris,
239 111. 526, 88 N. E. 238 (allowed on the facts). 1909, Fitzgerald v. Allen, 240 111. 80, 88
N. E. 240. 1909, Nix v. Thackaberry, 240 111. 352, 88 N. E. 811 ("We have been com-
pelled too frequently of late to comment on counsel testifying in cases which they are
themselves conducting"). 1911, Wetzel v. Firebaugh, 251 111. 190, 95 N. E. 1085 ("it is
not proper" for a solicitor in the case to testify to the testatrix' competency). 1911,
Bailey v. Beall, 251 111. 577, 96 N. E. 567 (and the fact of a witness having been attorney
in the cause may be ascertained, for the purpose of affecting his credit). 1913, Mithen v.
Jeffery, 259 111. 372, 102 N. E. 778 (attorney testifying to conversation with the oppo-
nent). 1914, Judy V. Judy, 261 111. 470, 104 N. E. 256. (Does this series of recent
rulings indicate that attorneys in Illinois are more callous in disregard of this rule of ethics,
444
OPINION RULE § 1922
[Note 9 — continued]
or that trial Courts are more ignorant of it, or that the Supreme Court is more tender of it,
than elsewhere ? In any event, it is not fitting that the Supreme Court should content
itself with empty comment.)
la.: 1908, Ross ». Ross, 140 la. 51, 117 N. W. 1105 (admissible, but open to reflection).
Utah: 1911, State v. Greene, 38 Utah 389, 115 Pac. 181 (an attorney participating in a
trial is competent, but it is improper for him to testify; McCarty, J., diss, on the ground
that the attorney in this case should have been excluded from one or the other capacity ;
the dissenting judge's condemnation of the practice merits wider acceptance ; courts are
too lax in enforcing this rule of moral decency).
§ 1918. Theory of the Opinion Ride.
[Note 1 ; add :\
1905, State v. Miller, 71 N. J. L. 527, 60 Atl. 202 (accused's clothing ; comparison between
spots on it now and spots on portions cut off and destroyed, allowed).
§ 1919. Erroneous Theories; (2) "Opinion" and "Fact."
[Text, p. 2555, at end of quoted passages; add a new note a.]
Accord: Atwood v. Atwood, 84 Conn. 169, 79 Atl. 59 (opinion by Wheeler, J.).
§ 1920. Erroneous Theories ; (2) Usurping the Function of the Jury.
[Note 2; add:]
1904, State v. McGruder, 125 la. 741, 101 N. W. 646.
[NoUZ; add:]
1907, Dunn, J., in Chicago Union Traction Co. v. Roberts, 229 111. 481, 82 N. E. 401 (allow-
ing a question whether a certain injury .was the cause of the plaintiff's present condition) :
"It is not the province of the expert to apt as judge or jury. He cannot be called upon to
decide a question of fact. ... It was a question for the jury to determine. But it was
impossible for them to answer without hearing the opinions of physicians. These opinions
did not invade the province of the jury. ... In any event the testimony was merely the
opinion of the witness given as such, upon a state of facts assumed to be true. It still
remained for the jury to determine the facts ; and the opinion was nevertheless an opinion
only."
§ 1921. Same: (3) Opinions on the Very Issue, etc.
[Notel; add:]
1905, Sun Ins. Office v. Western W. M. Co., 72 Kan. 41, 82 Pac. 513 (whether there was a
"fire" ; the issue being as to the spontaneous combustion of wool).
[A^ofe2; add:]
1906, Goddard v. Enzler, 222 111. 462, 78 N. E. 805 (citing Chicago & A. R. Co. v. R. Co.,
supra, n. ,1, and qualifying it by saying that "it is not always a good objection to such a
question that it calls for an opinion upon a question to be decided by the jury," provided
it is not "the ultunate question to be found by the jury").
1911, State V. Lindsay, 85 Kan. 192, 116 Pac. 209, semble.
§ 1922. Same : (4) Opinion admissible, etc.
[Note 1; add:]
1904, Morrow v. National Mas. Ace. Ass'n, 125 la. 633, 101 N. W. 468 (experts excepted).
445
§ 1928 OPINION RULE
§ 1928. Form of the Opinion Rule, etc.
[Text, p. 2562, at the end of par. 1 ; add a note 1 :]
> Approved by Keithy P., in Hot Springs L. & M. Co. v. Revercomb, 110 Va. 240,
65 S. E. 557 (1909).
§ 1929. Future of the Opinion Rule.
[Text, p. 2563, last line; aM a new note la:]
1" Approved in Pope v. State, 174 Ala. 63, 57 So. 245.
§ 1935. Sanity ; Facts Observed need not Precede Statement of Opinion.
[Note, 1 par. 1 ; add:]
1909, State v. Rumble, 81 Kan. 16, 105 Pac. 1.
§ 1938. Laymen's Opinions as to Sanity ; State of the Law, etc.
[Note 1 ; add :] j
Ala. : 1904, Parrish v. State, 139 Ala. 16, 36 So. 1012 (an opinion to insanity must be pj-e-
ceded by a statement of observed facts; but an opinion to sanity need only negative
generally any data of insanity). 1904, Porter v. State, 140 Ala. 87, 37 So. 81. 1905, Bra-
ham V. State, 143 Ala. 28, 38 So. 919 (rule followed ; but the addition of "State any other
peculiarities about him" will make the question objectionable; this sort of quiddity may
seem to our Courts to be worth enunciating ; but they may be assured that from the stand-
point of clear-minded and efficient justice it is a senseless mumbling ; here its absurdity of
quibbling is further shown by the allowance in the same case of a question to another
witness, "Did you observe anything unusual, peculiar, or unnatural?").
Ark.: 1905, Byrd v. State, 76 Ark. 286, 88 S. W._956.
Cal. : the prior decisions are now harmonized by the rule that a person who is an "intimate
acquaintance," under C. C. P. § 1870, supra (cited and construed ante, § 689), may testify
to the condition of sanity or insanity in general, while a person who is not an "intimate
acquaintance," but has still observed the party's conduct, may state whether his conduct
or appearance as observed was rational or irrational : 1904, People v. Manoogian, 141 Cal.
592, 75 Pac. 177.
Conn. : 1905, Nichols v. Wentz, 78 Conn. 429, 62 Atl. 610.
Fla.: 1906, Leaptrot v. State, 51 Pla. 57, 40 So. 616 (specific facts must be stated).
Ga.: 1911, Strickland v. State, 137 Ga. 115, 72 S. E. 922 (lay opinion admitted; virtually
repudiating the doctrine that the observed data must be stated by the witness beforehand,
as laid down in Welch v. Stipe).
III.: 1904, Chicago U. T. Co. v. Lawrence, 211 111. 373, 71 N. E. 1024 ("If a non-expert
witness gives an opinion without sufficient knowledge of facts to support it, opposing
counsel may upon cross-examination show that it is of little value "). 1906, Compher v.
Browning, 219 111. 429, 76 N. E. 678 (whether a testatrix was "easily influenced or suscep-
tible to flattery," excluded). 1909, Snell v. Wilson, 239 111. 279, 87 N. E. 1022 (impor-
tance of latitude on cross-examination, emphasized). 1910, Graham v. Deuterman, 244 111.
124, 91 N. E. 61. 1913, Brainard v. Brainard, 259 111. 613, 103 N. E- 45 ("It is only after
he has detailed the facts and circumstances . . . that the opinion becomes of any value ").
Ind. : 1906, Heaston v. Krieg, 167 Ind. 101, 77 N. E. 805. 1906, Swygart ii.Willard, 166
Ind. 25, 76 N. E. 755 (rule applied). 1908, Lawson v. State, 171 Ind. 431, 84 N. E. 974
(the facts must be stated).
la. : 1904, Stutsman v. Sharpless, 125 la. 335, 101 N. W. 105. 1905, Lucas v. McDonald,
126 la. 678, 102 N. W. 532 (precedent statement of data not required for witness tp sanity).
1906, State v. Hayden, 131 la. 1, 107 N. W.929 (a witness to sanity need not limit his opinion
446
OPINION RULE § 1938
[Note 1 — continued]
to data expressly detailed by him). 1909, McBride v. McBride, 142 la. 169, 120 N. W.
709 (witness to mental unsoundness must speak only as to the period of observation ; in
this State, there is much petty and futile learning about the details of the present rule).
1909, Spiers v. Hendershott, 142 la. 446, 120 N. W. 1068 (non-expert must first detail all
circumstances observed).
Kan. : 1905, Howard v. Carter, 71 Kan. 85, 80 Pac. 61. 1909, State v. Rumble, 81 Kan. 16,
105 Pac. 1 (the witness may first state the observed data, or he need not if opportunity to
cross-examine is given; prior rulings examined).
Ky. f but the qualification referred to is now once more dallied with : 1906, Stafford v.
Tarter, — Ky. — , 96 S. W. 1127. 1911, Banks v. Com., 145 Ky. 800, 141 S. W. 380.
La.: 1904, State v. Lyons, 113 La. 959, 37 So. 890 (an opinion to sanity need not be pre-^
ceded by a recital of the facts and reasons ; as to insanity, the question is left open).
Md. : 1904, Watts v. State, 99 Md. 30, 57 Atl. 542 (rule applied to exclude and admit cer-
tain opinions). 1905, Struth v. Decker, 100 Md. 368, 59 Atl. 727 (some opinions admitted
and some excluded on the facts ; opinion obscure). 1914, Whisner v. Whisner, — Md. — ,
89 Atl. 393 (the witness must first state the data for his opinion).
Mass. : 1904, McCoy v. Jordan, 184 Mass. 575, 69 N". E. 358 ("From these facts . . . what
do you infer in your own mind as to Mr. J.'s mental capacity?" excluded ; but "Did you
ever notice anything to indicate that he was not of sound mind?" admitted; this local
rule of logomachy, unworthy though it is of the dignity of justice, seems to be consistently
and skilfully applied by bench and bar). 1908, Gorham v. Moor, 197 Mass. 522, 84 N, E.
436 (whether they ever saw or heard anything that indicated anything singular or unusual
respecting her mental condition, allowed). 1909, Jenkins v. Weston, 200 Mass. 488, 86
N. E. 955. 1911, Leary v. Webber Co., 210 Mass. 68, 96 N. E. 136 (rule appKed to testi-
mony about a half-witted employee). 1912, Com. v. Spencer, 212 Mass. 438, 99 N. E.
266 (noting that a physician's opinion is an exception to the general rule).
Mich. : 1904, Roberts v. Bidwell, 136 Mich. 191, 98 N. W. 1000 (rule of O'Connor v. Madison
applied). 1905, Hibbard v. Baker, '141 Mich. 124, 104 N. W. 399 (rule of Prentis v. Bates
applied, in an instance which glaringly exhibits the fallacy of that rule).
Minn. : 1903, Scott v. Hay, 90 Minn. 304, 97 N. W. 106 (and even experts must first detail
the facts observed). •
Mo. : 1906, State v. Speyer, 194 Mo. 459, 91 S. W. 1075 (exclusion of the reasons for the
opinion of insanity, held erroneous).
Nebr. : 1904, Pothwell v. State, 70 Nebr. 747, 99 N. W. 669. 1906, Issac's Estate, — Nebr.
— , 107 N. W. 1016. 1907, Wilson's Estate, 78 Nebr. 758, 111 N. W. 788 (where the wit-
nesses testify to sanity, the particular data need not first be stated; prior cases reviewed).
N. H. : 1903, Pattee v. Whitcomb, 72 N. H. 249, 56 Atl. 459 (discretion of the trial Court
controls as to the witness' qualification).
N. Mex.: 1911, Terr. v. McNab, 16 N. M. 625, 120 Pac. 907 (admitting lay opinion; fol-
lowing Com. M. L. Ins. Co. v. Lathrop, U. S., but ignoring Terr. v. Padilla).
A^. Y. : 1904, People v. Spencer, 179 N. Y. 408, 72 N. E. 461 (rule appUed). 1906; Myer's
Will, 184 N. Y. 54, 76 N. E. 920 ("What was the impression these acts and conversations
made on you as to whether they were rational or irrational ?" "She was irrational" ; the
answer held improper). 1906, People v. Pekarz, 185 N. Y. 470, 78 N. E. 294 (a sweetened
morsel of quibbling ; the Court also complacently declares that the modern tweedledee rule
has "run through the cases from an early day" !). 1909, People v. Hill, 195 N. Y. 16,
87 N. E. 813 (quibbles applied).
Or.: 1906, Lassas v. McCarty, 47 Or. 474, 84 Pac. 76 (statute applied).
S.D. : Lay opinion is admitted : 1903, Halde v. Schultz, 17 S. D. 465, 97 N. W. 369.
Tenn.: 1907, Atkins v. State, 119 Tenn. 458, 105 S. W. 353.
Tex. : 1911, Turner v. State, 61 Tex. Cr. 97, 133 S. W. 1052 (the witness must first state the
conduct which he has observed ; but if his opinion is that the person is sane, it is sufficient
to state that he has never noticed conduct indicating insanity; prior cases reviewed).
447
§ 1938 OPINION RULE
[Note 1 — continued]
U. S. : 1909, Turner v. American Security & T. Co., 213 U. S. 257, 29 Sup. 420. 1910,
Waller v. U. S., 8th C. C. A., 179 Fed. 810.
W. Va.: 1912, Freeman v. Freeman, 71 W. Va. 303, 76 S. E. 657.
Wis. : 1907, Duthey v. State, 131 Wis. 178, 111 N. W. 222 (proper form of question stated).
§ 1943. Opinion as to Value ; (1) Property-Value.
[Note 2; add:]
Ala. : 1905, Alabama C. C. & I. Co. v. Turner, 145 Ala. 639, 39 So. 603 (mill site). 1906,
Central of Ga. R. Co. v. Keyton, 148 Ala. 675, 41 So. 918 ("State if your property was
damaged by the overflow," held improper, but "State the effect of the overflow on your
houses and lot," held proper ; if Justice is to be regarded as a machine for splitting hairs,
then the machine works very delicately in this State).
Ga.: 1909, Miller v. Luckey, 132 Ga. 681, 64 S. E. 658 (land-trespass; value before and
value after must be stated).
III. : 1911, Springfield & N. E. Traction Co. ». Warrick, 249 111. 470, 94 N. E. 933 (raiboad
fence ; opinion that the amount of damage to the plaintiff by reason of stock trespass would
be $10 a year, etc., held improper).
Ind.: 1906, Schmoe v. Cotton, 167 Ind. 364, 79 N. E. 184 (moreover, "a judgment should
not be reversed merely because a part or all of the witnesses have stated the damages, in-
stead of the value, where the damages depend wholly on the value before and after the
injury ").
la.: 1905, Parrott v. Chicago G. W. R. Co., 127 la. 419, 103 N. W. 352 (damage under
eminent domain taking, excluded). 1907, lowa^-Minn. Land Co. v. Conner, 136 la. 674,
112 N. W. 820 (contract for sale of land).
Md.: 1905, Baltimore B. R. Co. v. Sattler, 100 Md. 306, 59 Atl. 654 (smoke-nuisance;
expert testimony to the amoimt of damage and the diminution of land value, excluded).
1906, Western Union T. Co. v. Ring, 102 Md. 677, 62 Atl. 801 (value of trees cut, excluded).
Mich. : 1905, Withey v. Pere Marquette R. Co., 141 Mich. 412, 104 N. W. 773 (personalty
injured in a railroad collision ; testimony to the damage, allowed) ; and cases cited ante,
§716.
Minn. : 1908, Mandery v. Mississippi & R. R. B. Co., 105 Minn. 3, 116 N. W. 1027 ("What
was the damage, or how much less was the land worth, etc. ?" allowed).
Mo. : 1906, Southern Mo. & A. R. Co. v. Woodard, 193 Mo. 656, 92 S. W. 470.
Mmt. : 1905, Watson v. Colusa P. M. & S. Co., 31 Mont. 513, 79 Pac. 14 (land injiu'ed by
smelting works ; value before and after, admitted ; opinion obscure).
Nehr. : 1906, McCook v. McAdams, 76 Nebr. 1, 106 N. W. 988 (damage by flooding).
N. Y.: 1907, Shaw v. N. Y. Elev. R. Co., 187 N. Y. 186, 79 N. E. 984 (rule of Roberts v.
R. Co. held not to exclude certain opinions to value).
iV..C.; 1908, Wade v. Carolina T. & T. Co., 147 N. C. 219, 60 S. E. 987 (decrease in land-
value by telegraph structure, allowed).
Or. : 1904, Pacific L. S. Co. v. Murray, 45 Or. 103, 76 Pac. 1079 (trespass by sheep ; amount
of damages, excluded ; citing prior cases in this jurisdiction).
1913, Portland v. Tigard, 64 Or. 404, 129 Pac. 755 (street benefits; expert testimony to the
amount of benefit and damage, allowed).
Pa. : as to eminent-domain taking : Contra, semhle : 1908, Byrne s. Cambria & C. R. Co.,
219 Pa. 217, 68 Atl. 672.
Tenn.: 1904, Wray v. Knoxville L. F. 8s J. R. Co., 113 Tenn. 544, 82 S. W. 471 (damage
by taking land, allowed ; settling a prior conflict of rulings).
Wash. : 1904, Ingram v. Wishkah Boom Co., 35 Wash. 191, 77 Pac. 34 (value of realty
before and after injury, and value of personalty destroyed; allowed). 1905, Johnson v.
Tacoma, 41 Wash. 51, 82 Pac. 1092 (value of benefits to realty ; S. & M. R. Co. v. Gilchrist,
followed).
448
OPINION RULE § 1951
§1944. Same: (2) Other Values, etc.
[Note 1 ; add, under Services :]
1908, Ferry v. Henderson, 32 D. C. App. 41 (building superintendent's services).
1906, Croft V. Chicago R. I. & P. R. Co., 134 la. 411, 109 N. W. 723 (wife's services).
1907, Morehead's Trustee v. Anderson, 125 Ky. 77, 100 S. W. 340 (attorney's services).
[Note 1 ; add, under Personal Injuries :]
1906, Cincinnati Traction Co. v. Stephens, 75 Oh. 171, 79 N. E. 235 (father's opinion of
value of child's services, excluded).
Contra: 1905, Roundtree v. Charleston & W. C. R. Co., 72 S. C. 474, 62 S. E. 231 (plaintiff
allowed to testify to the money amount of injury to her health).
[Note 1 ; add, under Sundries :]
1904, McCrary v. Pritchard, 119 Ga. 876, 47 S. E. 341 (amount of damages by false repre-
sentations, excluded).
1911, Jenkins v. Commercial Nat'l Bank, 19 Ida. 290, 113 Pac. 463 (wrongful foreclosure of
a mortgage, excluded).
1909, Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S. W. 364 (libel on the plaintiff by
publishing a forged testimonial for pills ; physicians' testimony that a testimonial of this
sort was damaging to the person's repute, held improper ; on the record, one of the most
unjust of quibbles).
1913, Nelson Theatre Co. v. Nelson, 216 Mass. 30, 102 N: E. 926 (value of a theatre lease-
hold, based on gross receipts and net profits, held not improperly admitted in discretion).
1912, Eesley Light & P. Co. «. Commonwealth P. Co., 172 Mich. 78, 137 N. W. 663 (esti-
mate of proportion of cost of coal used, due to obstruction of water-power, admitted ; liberal
opinion by Stone, J.).
1907, Crosby v. Wells, 73 N. J. L. 790, 67 Atl. 295 (whether oil lands were profitable terri-
tory or not, allowed).
§ 1947. Opinion as to Insurance Risk ; State of the Law, etc.
[Note 3, part 2 ; add :]
1904, Hanna v. Orient Ink Co., 109 Mo. App. 152, 82 S. W. 115, semble (fire).
[Note 4, part 2; add:]
1905, Prudential F. Ins. Co. v. Alley, 104 Va. 356, 51 S. E. 812 (fire ; erection of adjoining
building).
[jVofelO; add:]
1906, Provident S. L. Assur. Soc'y v. Whaynejs Adm'r, — Ky. — , 93 S. W. 1049, semble
(life; following Penn M. L. Ins. Co. v. M. S. B. & T. Co., Fed., infra).
§ 1951. Opinion as to Conduct (Care, Safety, etc.) ; State of the Law, etc.
[Note 1; addr]
Ala. : 1904, Sloss-Sheffield S. & I. Co. v. Mobley, 139 Ala. 425, 36 So. 181 (whether a mode
of coupling was safe, allowed). 1904, Davis «. Kornman, 141 Ala. 479, 37 So. 789 (the proper
precaution to guard a dangerous machine, allowed). 1904, Northern Ala. R. Co. v. Shea,
142 Ala. 119, 37 So. 796 (that a certain speed was dangerous, allowed). 1905, Western U.
Tel. Co. V. Merrill, 144 Ala. 618, 39 So. 121 (that everything was done to send a message,
etc., excluded). 1905, Wallace v. North Ala. T. Co., 145 Ala. 682, 40 So. 89 (whether it
was impossible to stop a car, allowed). 1906, Williamson I. Co. v. McQueen, 144 Ala.
449
§ 1951 OPINION RULE
[Note 1 — continued]
265, 40 So. 306 (whether a furnace was in good condition, etc., allowed). 1906, Birming-
ham R. L. & P. Co. V. Martin, 148 Ala. 8, 42 So. 618 (to an engineer, whether he handled
the engine carefully, not allowed). 1907, Southern Coal & C. Co. v. Swinney, 149 Ala.
405, 42 So. 808 (whether a latch was safe, allowed). 1912, Alabama C. G. & A. R. Co. v.
Heald, 178 Ala. 636, 59 So. 461 ("The motorman had no time to stop the car," excluded).
Ariz.: 1904, Hviachuca W. Co. v. Swain, 4 Ariz. 113, 77 Pac. 619 (whether a person could
"fail to perceive " a ditch, excluded ; with a disquisition on the tweedledum and tweedledee
of this subject).
Ark. : 1910, Dardanelle P. B. & T. Co. v. Croom, 95 Ark. 284, 129 S. W. 280 (that a guard
rail was built "in an improper manner" and was not "safe," allowed).
Cal. : 1903, Luman v. Golden A. C. M. Co., 140 Cal. 700, 74 Pac. 307 (whether a hoisting-
machine was safe, excluded). 1906, Bundy v. Sierra L. Co., 149 Cal. 772, 87 Pac. 622
(safe mode of constructing a trestle, not decided).
Colo. : 1904, Wilson v. Harnette, 32 Colo. 172, 75 Pac. 395 (whether an ore lead would
justify expense in following, allowed). 1913, Meeker ». Fairfield, — Colo. — , 136 Pac. 471
(whether a crosswalk was safe, excluded).
Conn. : 1905, Campbell v. New Haven, 78 Conn. 394, 62 Atl. 665 (whether a sidewalk was
in safe condition for travel, allowed). 1912, Schafer, Jr. & Co. v. Ely, 84 Conn. 501, 80'
Atl. 775 (whether a building had been constructed in a workmanlike manner and according
to plans, allowed; liberal opinion, by Wheeler, J.).
Fla. : 1906, Jacksonville El. Co. v. Sloan, 52 Fla. 257, 42 So. 516 (whether "all precautions,
possible" were taken, allowed).
Ga. : 1905, Southern R. Co. v. Cunningham, 123 Ga. 90, 50 S. E. 979 (whether cars were
managed in a way "unusual or unnecessary," allowed). 1905, Evans v. The Josephine
Mills, 124 Ga. 318, 52 S. E. 538 (whether a machine was dangerous, not allowed, for non-
experts) .
Haw. : 1906, Terr. v. Cotton, 17 Haw. 618, 635 (whether it was safe or prudent to moor a
dredger, etc., allowed).
Ida. : 1911, Knauf v. Dover L. Co., 20 Ida. 773, 120 Pac. 157 (proper method of construct-
ing a slasher, allowed).
III. : 1904, Henrietta Coal Co. v. Campbell, 211 111. 216, 71 N. E. 863 (whether certain con-
ditions of a roadway made it safe, allowed, for experts). 1905, Kellyville Coal Co. v. Strine,
217 111. 516, 75 N. E. 375 (practicability of using crossbar props in a mine, allowed). 1905,
Siegel, Cooper & Co. v. Trcka, 218 111. 559, 75 N. E. 1053 (whether the construction of an
elevator door was safe, excluded). 1906, Schillinger Bros. Co. o. Smith, 225 111. 74, 80 N. E.
65 (whether boards were fit for scaffolding, not decided). 1908, Yarber v. Chicago & A. R.
Co., 235 111. 589, 85 N. E. 928 (whether a mode of raising a car was " reasonably safe,"
excluded). 1913, Keefe v. Armoiir & Co., 258 111. 28, 101 N. E. 252 (whether a method of
generating gas in a tank was reasonably safe, excluded). '
la.: 1904, Collins v. Chicago, M. & St. P. R. Co., 122 la. 231, 97 N. W. 1103 (whether a
cattle-gate was sufficient, excluded). 1905, Schroeder v. Chicago & N. W. R. Co., 127 la.
365, 103 N. W. 985 (whether an unblocked switch-frog is dangerous, allowed, for experts).
1905, Hofacre v. Monticello, 128 la. 239, 103 N. W. 488 (whether ice elsewhere was as bad,
etc., allowed on cross-examination). 1905, German Ins. Co. v. Chicago & N. W. R. Co.,
128 la. 386, 104 N. W. 361 (whether sparks could pass a netting, whether an engine could
be operated without emitting cinders, etc., allowed). 1906, Hamner v. Janowitz, 131 la.
20, 108 N. W. 109 (the proper and safe method of structure for a crane-track, allowed).
1909, Bruggeman v. Illinois C. R. Co., 147 la. 187, 123 N. W. 1007 (whether a train could
have been stopped more quickly, excluded). 1913, Escher v. Carroll Co., — la. — , 141
N.W. 38 (whether a bridge was reasonably safe, excluded ; on this point, this Court does not
seem to be able to free itself from the shackles of the Opinion rule as courageously as its
repute demands).
Kan.: 1911, Duncan v. Atchison T. & S. F. R. Co., 86 Kan. 112, 119 Pac. 356 (whether a
450
OPINION RULE § 1951
[Note 1 — continued]
bridge was a safe place for coupling cars, not allowed). 1913, Root v. Cudahy P. Co.,
88 Kan. 413, 129 Pac. 147 (whether an elevator was safe, not allowed).
Ky. : 1913, Newport R. M. Co. v. Mason, 152 Ky. 224, 153 S. W. 220 (safety of a floor cover-
ing, allowed).
Md. : 1908, Commissioners v. State, 107 Md. 210, 68 Atl. 602 (what was necessary to safe-
guard a bridge, excluded ; the deplorable extreme of this ruling may be gathered from the
circumstance that though the witness was "a former keeper of this bridge," the opinion
states that he "was not shown to possess any special skill or knowledge derived from or
relating to any trade, profession, or technical pursuit which would qualify Iiim to instruct
the jury " ; if there is no presumption that a bridge-keeper knows something special about
safeguards for bridges, then there ought to be none that a judge knows something special
about the law of evidence).
1908, Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875 ("Please state whether or not in your
opinion that horse was fit for a lady to drive," excluded ; thus is Common Sense shut out
of court and Scholasticism enshrined on an altar). 1913, Capital Traction Co. v. Contner,
120 Md. 78, 87 Atl. 904 (whether a motorman could have stopped the car in time, excluded).
Mass. : 1904, Meehan v. Holyoke St. R. Co., 186 Mass. 511, 72 N. E. 61 (proper way of
stringing telegraph wires, excluded). 1906, Erickson v. American S. & W. Co., 193 Mass.
119, 78 N. E. 761 (that cast-iron was unsuitable for a steam-pipe, allowed). 1912, Robin-
son V. Springfield St. R. Co., 211 Mass. 483, 98 N. E. 576 ("Was there anything you could
have done to avoid the colhsion?" held proper on the facts).
Mich. : 1904, Johnson v. Detroit & M. R. Co., 135 Mich. 353, 97 N. W. 760 (efficiency of a
cattle-guard, allowed). '
Minn. : 1904, McDonald v. Duluth, 93 Minn. 206, 100 N. W. 1102 (whether a railing was
safe, excluded). 1905, Scarlotta c. Ash, 95 Minn. 240, 103 N. W. 1025 (that a machine
"operated all right," allowed). 1906, Carhn b. Kennedy, 97 Minn. 141, 106 N. W. 340
(whether a machine could be guarded, etc., allowed).
Mo. : 1908, Meily v. St. Louis & S. F. R. Co., 215 Mo. 567, 114 S. W. 1013 (how many men
required to load a car, allowed).
Nebr. : 1908, Maxson v. Case Threshing M. Co., 81 Nebr. 546, 116 N. W. 281 (that a mode
of putting on a belt was dangerous, allowed).
N. C. : 1904, Marks v. Harriet Cotton Mills, 135 N. C. 287, 47 S. E. 432 (whether cog-
wheels should have been covered, etc., not allowed).
OM.: 1912, Hicks v. Davis, 32 Old. 195, 120 Pac. 260 (whether a gang plank was con-
structed in a prudent mode, excluded).
Or. : 1911, Weiss v. Kohlhagen, 58 Or. 144, 113 Pac. 46 (whether an excavation was neces-
sary, allowed).
S. C. : 1904, Koon v. Southern Ry., 69 S. C. 101, 48 S. E. 86 (whether a pile-driver was safe,
allowed).
S. D. : 1909, Reeves v. Chicago M. & St. Paul R. Co., 24 S. D. 84, 123 N. W. 498 (proper
place for a brakeman, allowed).
V. S. : 1903, Crane v. Fry, 126 Fed. 278, 61 C. C. A. 260 (proper handling of a tie-boom,
allowed). 1903, Wabash S. D. Co. v. Black, 126 Fed. 721, 727, 126 C. C. A. 639 (whether
a pulley was safe, allowed). 1906, Gila Valley G. & N. R. Co. v. Lyon, 203 U. S. 465, 27
Sup. 145 (whether a certain kind of buffer was a safe and proper one, allowed, in the trial
Court's discretion). 1908, United States Smelting Co. v. Parry, 8th C. C. A., 166 Fed. 407
(that a scaffold was dangerous, allowed).
Utah : 1904, Johnson v. Union P. C. Co., 28 Utah 46, 76 Pac. 1089 (safer way of letting
rails down a mine, excluded). 1904, Meyers v. Highland B. G. M. Co., 28 Utah 96, 77 Pac.
347 (whether a light in a mine was necessary, sufficient, etc., not allowed; McCarty, J.,
diss.). 1905, Lee v. Salt Lake, 30 Utah 35, 83 Pac. 562 (difficulty of riding a bicycle over a
depression, not allowed). 1907, Smith v. Ogden & N. W. R. Co., 33 Utah 129, 93 Pac. 185
(whether a fire could have been put out, not allowed).
451
S 1951 OPINION RULE
[Note 1 — continued]
Va. : 1905, Virginia I. C. & C. Co. v. Tomlinson, 104 Va. 249, 51 S. E. 362 (whether a mode of
starting a belt was dangerous, not allowed). 1907, Virginia-Carolina C. Co. v. Knight,
106 Va. 674, 56 S. E. 725 (whether a snatch-block was a safe appliance, excluded). 1909,
Hot Springs L. & M. Co. ■». Revercomb, 110 Va. 240, 65 S. E. 557 (whether a river was
floatable for logs, allowed; good opinion by Keith, P.).
Wash.: 1905, Lambert v. La Conner T. & T. Co., 37 Wash. 113, 79 Pac. 608 (whether a
captain could have prevented a collision, allowed). 1906, Smith v. Dow, 43 Wash. 407,
86 Pac. 555 (the proper way to tie packages, allowed).
W. Va. : 1905, WheeUng M. & F. Co. v. Wheeling S. & I. Co., 58 W. Va. 62, 51 S. E. 129
(certain testimony as to good faith, diligence, etc., in performing a contract, excluded under
the issues).
Wis. : 1904, Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066 (whether potatoes
were of good stock, etc., allowed). 1906, Hamann v. Milwaukee Bridge Co., 127 Wis. 550,
106 N. W. 1081 (whether work was done in a dangerous way, excluded ; the opinion makes
a well-meaning but vain effort to infuse into the rule some savor of rationality). 1906,
Anderson v. Chicago Brass Co., 127 Wis. 273, 106 N. W. 1077 (whether a machine was
dangerous, excluded). 1907, Zarnik v. Reiss C. Co., 133 Wis. 290, 113 N. W. 752 (whether
a door was safely locked, allowed). 1911, Benson v. Superior Mfg. Co., 147 Wis. 20, 132
N. W. 633 (whether a hooking device was safe, suitable, etc., excluded). 1911, Cooks.
Doud Sons & Co., 147 Wis. 271, 133 N. W. 40 (whether an engine "threw more sparks than
it should," allowed).
§ 1953. Opinion as to Foreign Law.
[Note 3, \. 5; add:]
1904, Slater v. Mexican Nat'l R. Co., 194 U. S. 120, 24 Sup. 581 (deposition of a Mexican
lawyer to the construction of Mexican statutes, received, additionally to the agreed trans-
lation of them).
1906, Re International Mahogany Co., 147 Fed. 147, C. C. A. (copy of the text of a Cuban
statute, held not to override the testimony of a Cuban lawyer).
1905, Clark v. Eltinge, 38 Wash. 376, 80 Pac. 556 (construction of a Montana statute ; the
testimony of a Montana attorney as to the "consensus of opinion of the bench and bar of
Montana," excluded ; otherwise if he had testified that the Montana courts "had construed
the statute in a certain manner" or "had never passed upon said statute ").
§ 1955. Opinion as to Interpretation of Documents ; (1) Technical Words.
[Note 1, par. 1 ; add:]
1906, Tubbs v. Mechanics' Ins. Co., 131 la. 217, 108 N. W. 324 (expert opinion as to the
meaning of "machinery" in a fire insurance policy, excluded).
1905, Kitchings v. Brown, 180 N. Y. 414, 73 N. E. 241 (meaning of "tenement house" in
a deed ; expert testimony admitted).
Compare the cases cited post, § 2464.
§ 1956. Same : (2) Location of Descriptions, etc.
[Note 1 ; add :]
1904, Dorian v. Westervitch, 140 Ala. 283, 37 So. 382 (that the land described in a deed and
in a declaration is the same, allowed).
1905, Brundred v. McLaughlin, 213 Pa. 115, 62 Atl. 565 ("Where in your opinion is the line
between Nos. 83 and 84?" allowed).
1904, Baker i\ State, 47 Tex. Cr. 482, 83 S. W. 1122 (limits of Federal land).
452
OPINION RULE § 1958
[Note 1 — continued]
1909, Tate v. Rose, 35 Utah 229, 99 Pac. 1003 (identity of description in patent with land
in issue).
1910, Richmond s. Jones, 111 Va. 214, 68 S. E. 181 (HoUeran ». Meisel approved, but draw-
ing an obscure distinction between knowledge and opinion).
1913, Winding Gulf C. Co. s. Campbell,— W. Va. — , 78 S. E. 384 aocation of a survey).
[Note 2; add:] '
1908, Keefe v. Sullivan Co. R. Co., 75 N. H. 116, 71 Atl. 379 (civil engineers not admitted
to testify where a point of curve on the survey began, and whether a fence was upon the
true line ; this ruling almost makes one despair of the final victory of Common Sense in
the law ; if a Court with the high traditions of the New Hampshire Court backslides in this
manner, little can be hoped for elsewhere ; moreover the opinion has failed to fortify itself
respectably on the subject, for it cites no rulings on the specific point, and ignores the prec-
edents cited in this and the preceding note).
1910, Richmond v. Jones, 111 Va. 214, 68 S. E! 181 (opinion as to identity of land included
in certain deeds, excluded).
§ 1957. Same : (3)' Contents of a Lost Document.
[Note 1, par. 2; add:]
Compare the application of the rule requiring the production of the original/ where the
witness is desired to testify summarily to the effect of a document or to the state of accounts
therein {ante, §§ 1230, 1244).
Compare also the rule that a party may explain his meaning in a document offered against
him as an admission {ante, §§ 1044, 1058, post, § 1972).
§ 1958. Opinion as to Testator's or Grantor's or Accused's Capacity.
[Nate 1, par. 1; add:]
1911, Councill D. Mayhew,172 Ala. 295, 554 So. 3i4.
1909, In re Coburn, 11 Cal. App. 604, 105 Pac. 924.
1905, Denver & R. G. R. Co. v. Scott, 34 Colo. 99, 81 Pac. 763 (to a physician, "Whether S.
was able to transact business, including such business as the settlement of the claim . . .
for injuries from which he was suffering?" excluded; this is a bigoted application of the
rule ; if Courts cannot handle it any more practically than this, the whole rule will have to
go by the board).
1911, Atwood V. Atwood, 84 Conn. 169, 79 Atl. 59 (whether a grantor was capable of mak-
ing any contract, allowed, but not whether she was capable of making a particular contract
or will ; this tweedledum and tweedledee still satisfies a court which in the same opinion
takes an advanced liberal stand on other aspects of this benighted Opinion rule).
1908, Macafee «. Higgins, 31 D. C. App. 355 (whether a testator " was capable and was of
sufficient mental capacity to understand and execute a valid deed or contract," held not
reversible error ; a most enlightened ruling, worthy of notice by all other Courts).
1908, Garrus ». Davis, 234 111. 326, 84 N. E. 924 ("capable of executing a valid will," not
allowed). 1911, Wetzel v. Firebaugh, 251 111. 190, 95 N. E. 1085 (whether the testatrix
"had sufficient mental capacity to understand the business she was engaged in, of making
a will," held improper). 1911, Adams v. First Methodist Episcopal Church, 251 111. 268,
96 N. E. 253 ("Was there any fraud, duress, or undue influence used to induce A. S. A. to
sign her name?" held improper). 1911, Bailey v. Beall, 251 111. 577, 96 N. E. 567 ("suffi-
cient mental capacity to make a will," excluded).
1905, Glass' Estate, 127 la. 646, 103 N. W. 1013 (whether the testator was capable of mak-
ing the will, excluded; whether he was 'capable of transacting ordinary bfusiness and of
463
§ 1958 OPINION RULE
[Note 1 — continued]
intelligently disposing of property," allowed; Betts v. Betts, supra, said to have been
"practically overruled"). 1904, State v. McGruder, 125 la. 741, 746, 101 N. W. 646
(whether a boy was "capable of knowing or appreciating the distinction between right
and wrong," allowed). 1909, State v. Bennett, 143 la. 214, 121 N. W. 1021 (whether an
accused was "irresponsible mentally for her acts," not allowed; Betts v. Betts, supra,
cited). 1909, Overpeck's Will, 144 la. 401, 120 N. W. 1044, 122 N. W. 928 (whether a
testatrix was "in the condition to comprehend the value of her property," etc., allowed;
Glass V. Glass affirmed). ,
1910, Searles v. Insurance Co., 148 la. 65, 126 N. W. 801 (whether an insured was "capable
of transacting business," allowed ; Glass v. Glass afiSrmed ; Betts v. Betts apparently dis-
carded).
1909, Overpeck's Will, 144 la. 400, 120 N. W. 1044 (Glass' Estate followed).
1912, Erwin v. Fillenworth, — la. — , 137 N. W. 502 (the unworkability of this complicated
quiddity as exhibited in this State is shown by the continuous grist of decisions needed to
correct errors ; it is wearisome to chronicle the particular divagations ; indeed, the Court
itself in the present opinion remarks, whether complacently or exhaustedly cannot be told,
"Nothing need be added to what has been said in these decisions" ; selah !).
1905, Struth v. Decker, 100 Md. 368, 59 Atl. 727 (excluded; opinion obscure). 1906,
Baugher v. Gesell, 103 Md. 450, 63 Atl. 1078 (Berry «. Safe D. & T. Co., supra, followed;
whether the testator "was of sound and disposing mind and capable of making a valid deed
or contract," excluded). 1906, Kelly v. Kelly, 103 Md. 548, 63 Atl. 1082 (similar; but
decided on another ground, by another judge, without noticing the preceding opinion,
dated the same day).
1907, Cheney's Estate, 78 Nebr. 274, 110 N. W. 731 ("able to make" a will, not allowed).
1903, Pattee v. Whitcomb, 72 N. H. 249, 56 Atl. 459 ("influence of the testator's wife over
him," allowed).
1904, Peterson, Re, 136 N. C. 13, 48 S. E. 661 (question discussed).
1905, Nashville C. & St. L. R. Co. v. Brundige, 114 Tenn. 31, 84 S. W. 805 (opinion as to
being "in a condition to transact business or make a contract," excluded ; unsound).
[Note 2, par. 1 ; add:]
Accord: 1904, State v. McGruder, 125 la. 741, 101 N. W. 646.
1911, Banks v. Com., 145 Ky. 800, 141 S. W. 380 (whether the accused could know right
from wrong, allowed).
1910, State v. Roselair, 57 Or. 8, 109 Pac. 865 (whether he knew right from wrong, allowed).
Contra: 1904, State v. Brown, 181 Mo. 192, 79 S. W. 1111.
1906, Reed v. State, 75 Nebr. 509, 106 N. W. 649 (Shults v. State, supra, followed ; ignoring
Pflueger v. State, supra).
[Note 2, 1. 6 :]
For "id," read "Mo."
[Note 2 ; add a new paragraph :]
A similar question arises for a child's capacity : 1906, Neville v. State, 148 Ala. 681, 41 So.
1011 (larceny by a boy of ten; testimony that "he was a bright boy mentally," etc., ad-
mitted).
§ 1959. Solvency.
[Note 1 ; add :]
1910, Cabaniss v. State, 8 Ga. App. 129, 68 S. E. 849 (allowed for insolvencv, under Civil
Code, § 5285).
1912, Moore v. Fryman, 154 la. 534, 134 N. W. 534 (insolvency, allowed).
454
OPINION RULE § I960
§ 1960. Miscellaneous Instances (Possession, etc.)'
[iVotel; add:]'
1906, Driver v. King, 145 Ala. 585, 40 So. 315 (in possession, allowed, but not "in open and
notorious possession of land").
1910, Cabaniss v. State, 8 Ga. App. 129, 68 S. E. 849 (admitted).
1910, Jacobs V. Disharoon, 113 Md. 92, 77 Atl. 258 (not clear).
1914, Fadden v. McKinney, — Vt. — , 89 Atl. 351 (wife's possession and control, excluded).
[Note 2; add:]
1905, Rosco V. Jefferson, 142 Ala. 705, 38 So. 246 (title to personalty under a levy ; testi-
mony to ownersliip, allowed).
1909, Perkins v. Sunset Tel. & T. Co., 155 Cal. 712, 103 Pac. 190 (that a claim was the wit-
ness' property, allowed).
1903, Sparks v. Galena Nat'l Bank, 68 Kan. 148, 74 Pac. 619 (mining property, allowed).
1913, Fort Smith & W. R. Co. v. Winston, 40 Okl. 173, 136 Pac. 1075 (personalty, al-
lowed).
1905, Hawley v. Bond, 20 S. D. 215, 105 N. W. 464 ("Who was then the owner of that
cow?" allowed).
1913, Webb v. Reynolds, — Tex. Civ. App. — , 160 S. W. 152 (that a person was "owner"
of a note, allowed).
[Note 3; add:]
1905, Renshaw v. Dignan, 128 la. 722, 105 N. W. 209 (that no deed had been received or
accepted, allowed on the facts).
[Note 4; add:]
1909, Mobile, J. & K. C. R. Co. v. Hawkins, 163 Ala. 565, 51 So. 37 (whether an authority
was withdrawn, allowed).
1907, Fritz v. Chicago G. & E. Co., 136 la. 699, 114 N. W. 193 (whether a person was agent,
allowed).
1907, People v. Mingey, 190 N. Y. 61, 82 N. E. 728 (whether the witness' firm authorized
an indorsement of its name, allowed on the facts). ,
1911, Hutchings v. Cobble, 30 Okl. 158, 120 Pac. 1013 (excluded).
[Note 5; add:] . ^
1909, Fowler v. Delaplain, 79 Oh. 279, 87 N. E. 260 (whether a building was "necessary,"
under a leasing clause, excluded).
[Note 7; add:]
1906, Owen v. McDermott, 148 Ala. 669, 41 So. 730 (owing money ; allowed).
1909, Mobile J. & K. R. Co. v. Hawkins, 163 Ala. 565, 61 So. 37 (whether a person had per-
formed his duties under a contract, etc. ; not decided).
1905, Sampson v. Hughes, 147 Cal. 62, 81 Pac. 292 ("Did you wilfully, negligently, etc.,
omit to watch the fire, etc. ?" excluded).
1905, Allison v. Wall, 121 Ga. 822, 49 S. E. 831 (what would be a reasonable time for re-
moving timber ; not allowed).
1904, Sokel v. People, 212 111. 238, 72 N. E. 382 (that the witness saw the defendant married
by a rabbi, excluded, the validity of the marriage being in issue ; why did not the Court
also hold that it was matter of opinion whether the celebrant was a rabbi and the place was
a synagogue?).
1907, Chicago & E. R. Co. v. Lawrence, 169 Ind. 319, 82 N. E. 768 (whether a specific act
was the duty of the switchman, not allowed on the facts).
1905, National Fire Ins. Co. v. Hanberg, 215 111. 378, 74 N. E. 377 ("net receipts" of an
455
§ 1960 OPINION RULE
[Note 7 — continued]
insurance company, in a statute, not allowed to be interpreted by the opinion of insurance
experts).
1912,^ Crane v. Ross, 168 Mich. 623, 135 N. W. 83 (whether an agreement was reached, the
agreement being in writing, excluded).
1905, State v. Nevada C. R. Co., 28 Nev. 186, 81 Pac. 99 (expert accountant's statement of
the "net earnings" of a railroad company as shown by their books, etc., excluded, partly
on this principle and partly on that of § 1230, ante).
§ 1963. Testimony to a State of Mind, in general, etc.
[Note 2; add:]
1911, Bogart v. New York, 200 N. Y. 379, 93 N. E. 937 (death of B. at an automobile race ;
question to his wife, whether she "knew when he went out that he was going to see the auto-
mobile races," held improper, because it did not call for B.'s " acts or statements" but only
the witness' "conjecture or conclusion"; no authority cited; this is a scholastic ruling;
the husband does not have to say formally and solemnly, "Mary, I am going to the races,"
in order to express a clear intention ; does not the learned judge's wife have a clear knowl-
edge whether he expects to have two or four lumps of sugar put into his coffee without his
telling her in a fixed formula every morning of his life ? It is time that human nature off
the Bench was recognized on the Bench ; such rulings are laifcally absurd).
[Note 3; add:]
1912, Robinson v. Western Union T. Co., 169 Mich. 503, 135 N. W. 292 (sender's intent to
act, on an issue whether a telegram had been properly transmitted, admitted).
[Note 4 ; add :]
1906, Fitzgerald v. Benner, 219 111. 485, 76 N. E. 709 (delay in performing a contract ; "He
kept putting me off," allowed, on the facts).
1907, State v. Bennett, 137 la. 427, 110 N. W. 150 (seduction; by the prosecutrix, that she
yielded because of the defendant's promises, allowed)'. 1908, Kinner v. Boyd, 139 la. 14,
116 N. W.1044 ("terribly excited," allowed, for a plaintiff speaking of himself).
1905, McCrohan v. Davison, 187 Mass. 466, 73 N. E. 553 (injury by a wagon while crossing
a street ; the plaintiff's testimony "I thought I would have plenty of time to pass," admitted) .
1908, Price v. State, 1 Okl. Cr. 358, 98 Pac. 447 (intention of an assailant).
1912, State v. Holter, 30 S. D. 353, 138 N. W. 953 (whether the woman, in seduction, would
have consented without a marriage-promise).
§ 1966. Same : Alabama Doctrines.
[Note 1, par. (2), 1. 7 of col. 1 on p. 2611 ; add:]
1904, Bell V. State, 140 Ala. 57, 37 So. 281 (P.'s opinion of defendant's state of mind, ex-
cluded). 1906, Delaney v. State, 148 Ala. 586, 42 So. 815 (by a witness, that the deceased
declarant "knew he was going to die," excluded). 1906, Richardson v. State, 145 Ala.
46, 41 So. 82 (tracing a manslayer by hounds; on re-direct examination, "Why did the
dogs leave the trail ? " was not allowed, on the present ground ; this is an edifying example
of the dogged consistency with which this rule of superfine wisdom is here applied; pre-
sumably the dogs should have been X-rayed to ascertain their motives ; inasmuch as the
dogs here were named respectively "Rock" and "Rye," it might well have been inferred
that they left the trail on a still hunt). 1910, Louisville & N. R. Co. v. Perkins, 165 Ala.
471, 51 So. 870 (whether a third person knew the suit was pending, excluded). 1911, Coun-
cill V. Mayhew, 172 Ala. 295, 55 So. 314 (whether a supposed insane person knew what he
was doing when he signed checks, allowed on cross-examination; prior cases not cited).
456
OPINION RULE § 1969
[Note 1, par. (3), 1. 8 from the end ; add:]
1904, Gregory v. State, 140 Ala. 16, 37 So. 259 (like Holmes v. State). 1905, Barnewell v.
Stephens, 142 Ala. 609, 38 So. 662 (excluding a witness' testimony to his "wish"). 1905,
Sprouse v. Story, 144 Ala. 542, 42 So. 23 (forcible entry ; to the defendant, "How came you
to go into the house on the premises in dispute ? " excluded ; this is a farcical game). 1906,
Smith V. State, 145 Ala. 17, 40 So. 957 (homicide; to the defendant, by his counsel : "For
what purpose did you have the pistol, etc.?" excluded; no authority cited). 1908, Pat-
terson V. State, 156 Ala. 62, 47 So. 52 (like Holmes v. State). 1913, Ex parte Woodward,
— Ala. — , 61 So. 295 (rule considered, in connection with the statute for prima facie evi-
dence of intent to sell liquor). 1914, Brooks ii. State, — Ala. — , 64 So. 295 (assault with
intent to rape ; prosecutrix' motive in delaying to prosecute, not admissible ; at this period
of this Court's history, cannot some member of the Court place on record the view that the
rule itself is a wretched piece of absurdity, and that it is observed merely in consequence
of its sanctity in precedents?).
[Note 1, par. (4), at the end; add:]
1904, Dorian v. Westervitch, 140 Ala. 283, 37 So. 382 (a claimant resting on adverse posses-
sion; "whether you have been claiming to own," allowed). 1905, Carwile v. State, 148
Ala. 576, 39 So. 220 (an impeached witness may explain why he made certain statements).
1906, Reeder «. Huffman, 148 Ala. 472, 41 So. 177 (constable's failiu-e to execute a writ ;
to a witness, "Would you have told the constable, etc., if he had inquired ? " excluded ; no
authority cited). 1906, Lawrence v. Doe, 144 Ala. 524, 41 So. 612 (adverse possession by
defendant; to the defendant, "Why did you not pay the taxes?" excluded; this rule is
certainly a successful device for suppressing the truth). 1906, Western Union T. Co. v.
Long, 148 Ala. 202, 41 So. 965 ("Why did you not give the telegram to yoin: brother?"
excluded). 1908, Patterson v. State, 156 Ala. 62, 47 So. 52 (like Linehan v. State).
§ 1967. Rules of Substantive Law, distinguished.
[Note I; add:]
So too for an act of adverse possession: 1905, Murphy v. Com., 187 Mass. 361, 73 N. E.
524 (a claimant going upon the land claimed ; "the secret and undisclosed intention of the
witness was immaterial").
Compare here the res gestce rules (ante, § 1778).
[Note 3; add:]
1907, State v. Simmons, 143 N. C. 613, 56 S. E. 701 (carrying a concealed weapon).
[Note 4l ; add :]
1906, Anderson v. Metrop. Stock Exchange, 191 Mass. 117, 77 N. E. 706 (statutory re-
covery for stock gambling; the defendant's manager's private intent, held immaterial).
1911, Aldrich v. Island E. T. & T. Co., 62 Wash. 173, 113 Pac. 264 (malicious prosecutions;
magistrate's reasons for discharging the plaintiff, excluded).
§ 1969. Testimony to the Meaning of a Conversation, etc.
[Note 1, par. 1; add:]
1910, Bercher v. Gunter, 95 Ark. 155, 128 S. W. 1036 (understanding as to the effect of a
sub-contract, excluded).
1911, Harrison v. Thackaberry, 248 111. 512, 94 N. E. 172 (whether a letter from a creditor
to a debtor was a consent to an extension of time on the note ; the creditor not allowed to
testify to his intent in writing it).
1905, State v. Wertz, 191 Mo. 569, 90 S. W. 838 (rape ; whether the witness " under-
stood " from what the prosecutrix said and did, that she had been raped, excluded).
457
§ 1969 OPINION RULE
[Note 2, par. 1; add:]
1909, Blossi V. Chicago & N. W. R. Co., 144 la. 697, 123 N. W. 360 (fraudulent release
by an alien ; the releasee's testimony that he believed the releasor to understand the pro-
visions, admitted).
1905, Union Hosiery Co. v. Hodgson, 72 N. H. 427, 57 Atl. 384 (joint purchase of coal ; the
"understanding" of one of the purchasers as to the ownership, admitted).
§ 1971. Same : Rules of Substantive Law, distinguished.
[Note 3; add:]
1905, Farnum v. Whitman, 187 Mass. 381, 73 N. E. 473 (wagering contract for wheat;
the intent of one party only, held immaterial).
1904, Downing v. Buck, 135 Mich. 636, 98 N. W. 388 (brokerage).
1907, Trombley v. Seligman, 191 N. Y. 400, 84 N. E. 280 (sale of materials for a house;
plaintiff's understanding as to who was the buyer, held immaterial).
[Note 4: ; add:]
1907, Ladwig v. Heyer, 136 la. 196, 113 N. W. 767.
1908, Harms v. Proehl, 104 Minn. 303, 116 N. W. 587.
[Note 5, par. 1 ; add:]
1903, Green v. Miller, 33 Can. Sup. 193.
1908, Moran v. O'Regan, 38 N. Br. 399 (hearer's opinion what "thief" meant, excluded;
Landry, J., diss, correctly on the facts).
1906, Goldborough v. Orem, 103 Md. 671, 64 Atl. 36.
1907, JuUan v. Kansas City S. Co., 209 Mo. 35, 107 S. W. 496 (most sensible opinion on
the subject, per Valliant, J. ; Graves & Lamm, JJ., diss.).
1913, Peak v. Taubman, 251 Mo. 390, 158 S. W. 656 (approving Julian v. Kansas City S.
Co., Graves, J., diss.).
The following ruling should be noted :
1908, Brinsfield v. Howeth, 107 Md. 278, 68 Atl. 666 (slander; the defendant had said that
lie had had a chance to "strap" the plaintiff ; a witness was asked if he knew the meaning
of "strap" in the neighborhood when used of a female, and answered that he did, and that
it meant "to have intercourse" ; the local meaning was held a proper thing to prove, but
this mode of proving it was held improper ; the quiddities of the Court's reasoning are not
■worth setting out here; it is a good example of anachronistic Cokianism which has
now become nauseous, and justly excites popular distrust of Courts).
§ 1974. Corporal Appearances of Persons and Things.
[Note 1, par. 1 ; add:]
Ala. : 1905, Tagert v. State, 143 Ala. 88, 39 So. 293 (that a person appeared angry or sur-
prised, allowable).
1905, Dillards. State, —Ala. — , 39So. 584 ("looked like a bottle of wine," allowed). 1906,
Sims V. State, 146 Ala. 109, 41 So. 413 ("seemed excited and looked like she had been cry-
ing," allowed).
Cal. : 1911, People v. Wong Loung, 159 Cal. 520, 114 Pac. 829 (that the accused was pale,
nervous, etc., allowed).
Conn. : 1905, Spencer's Appeal, 77 Conn. 638, 60 Atl. 289 (whether a testator spoke affec-
tionately or othenvise). 1905, Nichols ». Wentz, 78 Conn. 429, 62 Atl. 610 (whether E.
did or said anything indicating an attempt at coercion of a testator, allowed). 1911,
Atwood ii. Atwood, 84 Conn. 169, 79 Atl. 59 (that a grantor was "in a condition to know
nothing really," etc., flowed ; liberal opinion by Wheeler, J.).
458
OPINION RULE § 1974
[Note 1 — continued]
Ga.: 1905, lloberts v. State, 123 Ga. 146, 51 S. E. 374 ("appeared to be excited," etc.,
allowed). 1909, Georgia R. & E. Co. v. Gilleland, 133 Ga. 621, 66 S. E. 944 (that the
plaintiff appeared "more stupid after the injury than before" ( !), allowed). 1913, Lanier
•». State, 141 Ga. 17, 80 S. E. 5 (that by the marks on a child's body the cause of death ap-
peared to be smothering, allowed).
III. : 1904, Illinois C. R. Co. v. Prickett, 210 111. 140, 71 N. E. 435 (whether cracks in boiler-
bolts appeared old, allowed). 1909, People v. Davidson, 240 111. 191, 88 N. E. 565 (a wit-
ness to appearance as evidence of age must first "describe the appearance," etc. ; this is
a petty quibble). 1910, Louth v. Chicago U. T. Co., 244 111. 244, 91 N. E. 341 (see citation
ante, § 1721, n. 1).
la. : 1905, Rothrock v. Cedar Rapids, 128 la. 252, 103 N. W. 475 (whether snow appeared
as if a person had fallen, allowed). 1905, Kuhlman v. Wieben, 129 la. 188, 105 N. W. 445
(intoxicated; allowed). 1906, Kesselring v. Hummer, 130 la. 145, 106 N. W. 501 (seduc-
tion ; one who had seen the parties often in company was asked how they acted, and an-
swered, "They acted like lovers"; held properly excluded ; here again a peddling-out of
machine-made law, not fit for even the bargain-counter of Justice ; this ruling rivals that
of State V. Brown, supra, and shows no improvement of attitude in the fourteen years|
interval). 1909, Greenway v. Taylor Co., 144 la. 332, 122 N. W. 943 (by a physician^
whether the plaintiff had suffered pain, or was so injured as probably to cause pain, al-
lowed). /
La.: 1905, State v. Hopper, 114 La. 557, 38 So. 452 (whether the accused looked scared,
etc., allowed).
Md. : 1910, Fletcher v. Dixori, 113 Md. 101, 77 Atl. 326 (how a person's nervousness showed
itself, allowed).
Mass.: 1905, Wolfe v. N. B. Cordage Co., 189- Mass. 591, 76 N. E 222 (visual difference
between iron and steel ; not allowed).
Mich. : 1904, Comstock v. Georgetown, 137 Mich. 541, 100 N. W. 788 (whether a patient
"flinched," etc., at the touch, excluded). 1905, McCormick v. Detroit G. H. & M. R. Co.,
141 Mich. 17, 104 N. W. 390 (whether a patient appeared to be feigning illness, excluded),
1911, Merrill v. Leisenring, 166 Mich. 219, 131 N. W. 538 (whether "he was devoted to
his wife and children," allowed). 1912, Marshall v. Wabash R. Co., 171 Mich. 180, 137
N. W. 89 (whether the plaintiff was able to simulate, or was simulating, the injury alleged ;
rule not easily to be gathered ; the obstructive effect of the Opinion rule, and the delicate
anxiety of some Courts to preserve each form of its puerilities, are notable in this opinion).
Minn. : 1904, Clarke v. Phila. & R. C. & I. Co., 92 Minn. 418, 100 N. W. 231 (intoxication,
excluded on the facts).
Mont.: 1906, State v. Trueman, 34 Mont. 249, 85Pac. 1024 (intoxication; allowed). 1910,
State V. Vanella, 40 Mont. 326, 106 Pac. 364 ("nervous," allowed).
N. Mex.: 1914, State v. Cooley,- — N. M. — , 140 Pac. 1111 (murder; whether deceased
and defendant appeared friendly or otherwise, allowed).
Pa.: 1907, Com. v. Eyler, 217- Pa. 512, 66 Atl. 746 (intoxication; allowed).
S.C. : 1911, Miller v. Hamilton B. S. Co., 89 S. C. 530, 72 S. E. 397 (whether a person was
under the influence of a drug, admitted).
S.D.: 1908, Palmer v. Schurz, 22 S. D. 283, 117 N. W. 150 (intoxication).
Utah: 1909, Miller's Estate, 36 Utah 228, 102 Pac. 996 (that the testator's wife was "bitter,"
"agitated," etc., allowed; a perusal of this opinion will convince any one that the Opinion
rule has gone to seed).
Vt. : 1913, State v. Pierce, — Vt. — , 88 Atl. 740 (physician's misdemeanor in failing to
report known or suspected cases of communicable disease, here, diphtheria ; the membrane
having been shown to an expert witness, he was allowed to answer whether the diphtheritic
symptom "would be apparent to an ordinary practicing physician").
Wash. : 1910, State v. George, 58 Wash. 681, 109 Pac. 114 (whether two persons appeared
to care for each other, allowed) »
459
§ 1974 OPINION RULE
[Note 1, par. 2; add:]
1912, Cole V. District Board, 32 Okl. 692, 123 Pac. 426 (opinion as to negro race, admitted).
§ 1975. Medical and Surgical Matters.
[Note 1; add:]
1905, Hampton v. State, 50 Fla. 55, 39 So. 421 (how recently a wound had been made
allowed).
1906, Swygart v. Willard, 166 Ind. 25, 76 N. E. 755 (the effect of increase of drinking upon
the testator, allowed).
1904, Boyer v. Chicago, R. I. & P. R. Co., 123 la. 248, 98 N. W. 764 (whether a mare
was with foal, allowed).
1906, McDonald v. City El. R. Co., 144 Mich. 379, 108 N. W. 85 (how much a man's ability
to labor was reduced, allowed, for a physician).
. § 1976. Probability and Possibility; Capacity and Tendency; Cause and
ESect.
[Note 1; add:]
Eng. : 1912, Mason's Case, 7 Cr. App. 67 (whether death was caused by wounds not self-
inilicted, allowed).
Ala. : 1904, Kroell v. State, 139 Ala. 1, 36 So. 1025 (whether a quick succession of shots
could have been fired by the same person, allowed). 1904, Sims v. State, 139 Ala. 74,36
So. 138 (that a wound was fatal, allowed). 1904, Dixon v. State, 139 Ala. 104, 36 So. 784
(whether defendant's physical condition was such that he could have travelled, killed G.,
etc., allowed). 1904, Nickles v. State, — Ala. — , 37 So. 312 (whether there was time to
return from a place, not allowed). 1904, Southern R. Co. v. Bonner, 141 Ala. 517, 37 So.
702 (how far a headlight could have been seen, allowed). 1906, Foley v. Pioneer M. &
M, Co., 144 Ala. 178, 40 So. 273 (cause of death, allowed). 1907, Dupree v. State, 148
Ala. 620, 42 So. 1004 (whether it was possible to break a lock in a certain way, not allowed).
1913, Republic Iron & S. Co. v. Passafume, — Ala. — , 61 So. 327 (whether a man could
have been seen from a certain point, ilot allowed).
Ark. : 1908, Kansas C. S. R. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967 (whether a coupling
if in good repair would have operated properly, allowed).
Cal. : 1909, Perkins v. Sunset Tel. & T. Co., 155 Cal. 712, 103 Pac. 190 (whether a fall or
a blow could have caused certain injuries, allowed). 1913, Foley v. Northern Cal. P. Co.,
165 Cal. 103, 130 Pac. 1183 ("What was the cause of his death ? " allowed).
Fla. : 1904, Clemons v. State, 48 Fla. 9, 37 So. 647 (whether a wound could have been caused
by a fist, allowed).
Ga. : 1904, Central of Ga. R. Co. v. Goodwin, 120 Ga. 83, 47 S. E. 641 (whether a man
could work at a place without seeing a certain thing, excluded). 1904, Moran v. State,
120 Ga. 846, 48 S. E. 324 (whether a weapon was one likely to produce death, the weapon
being in court, excluded). 1909, Pride v. State, 133 Ga. 438, 66 S. E. 259 (whether the
witness could have seen a person in a certain position, allowed).
111. : 1904, Illinois C. R. Co. i). Smith, 208 111. 608, 70 N. E. 628 (to a physician, whether the
twisting of the plaintiff's foot had been caused by an even or an uneven surface, held im-
proper, chiefly on the ground that it asked what " did cause," not what " might have caused " ;
this is a good example of that legal quibbling which creates for the law of trials a disrespect
in the minds of competent physicians). 1907, Chicago v. Didier, 227 111. 571, 81 N. E.
698 (whether the injury was produced by the alleged cause, and not merely could or might
have been, allowed; cases reviewed). 1907, Chicago Union T. Co. v. Ertrachter, 228 111.
114, 81 N. E. 816 (Chicago v. Didier followed). 1907, Chicago Union Traction Co. v.
Roberts, 229 111. 481, 82 N. E. 401 (a question, on hypothetical data, whether the medical
460
OPINION RULE § 1976
[Note 1 — continued]
expert would believe the plaintiff's "present condition was due to traumatism or other
causes," allowed ; Dunn, J. : "It is entirely immaterial whether the witness testified that
the injury was the cause of the condition, or that the injury was suiBcient to cause the condi-
tion or might have caused it. . . . The question may be asked in either form"; Chicago
V. Didier, supra, followed ; Illinois C. R. Co. v. Smith, supra, distinguished ; this seems to
mark a definite and wholesome abandonment of the quibbling rule emphasized in 111. C.
R. Co. V. Smith and in the decisions of certain other States). 1908, Shaughnessy v. Holt,
236 111. 485, 86 N. E. 256 (personal injury; Didier and Roberts cases followed). 1908,
People V. Hagenow, 236 111. 514, 86 N. E. 370 (abortion; similar ruling). 1913, Lyons v.
Chicago City R. Co., 258 111. 75, 101 N. E. 211 (a physician's opinion, as to the cause of
a bloodshot eye, etc., that "he might have a fracture of the anterior fossa," held inadmis-
sible ; this is a strange reaction to over-strictness ; such cautious statements are unavoid-
able for honest medical witnesses). 1913, People v. Schultz, 260 III. 35, 102 N. E. 1045
(opinion that specific inflamed condition resulted from a rape, excluded ; another of those
ruHngs which make the medical profession jeer at the law ; what had become of the Roberts
Case, supra f).
la. : 1905, Rietveld v. Wabash R. Co., 129 la. 249, 105 N. W. 515 (whether a raih-oad track
could be seen, allowed). 1906, Martin v. Des Moines E. L. Co., 131 la. 724, 106 N. W. 359
(death of an employee in an electric light plant ; the defendant claimed that heart disease
caused death; a question to an expert, whether the deceased "received an electrical shock
before he fell" was held improper; this ruling reaches an extreme of artificial aridity of
law; such decisions show the need of a spiritual irrigation-law, for re-distributing the
fountains of Justice). 1906, Kesselring v. Hummer, 130 la. 145, 106 N. W. 501 (State v.
Peterson, supra, followed ; whether conception would be probable upon first intercourse,
excluded). 1909, Gray v. Chicago R. I, & P. R. Co., 143 la. 268, 121 N. W. 1097 (whether
a person could be seen, allowed). 1912, Sever v. Minneapolis & St. L. R. Co., 156 la. 664,
137 N. W. 937 (physician's opinion as to the probable cause of an injury, excluded ; the
opinion shows an inclination to admit, but feels bound by many precedents to exclude ; it
states : "Having so many timss announced the rule for this State, ... we do not feel like
changing it at this time, thus introducing contusion in the cases"; for rules of evidence,
the celebrated sentiment of Erskine should rather be accepted : "No precedents can sanc-
tion injustice ; if they could, every human right would long ago have been extinct upon
the earth" ; the precise kind of ruling above, common enough in other States also, is one
of the most frequent obstructions to truth that the Opinion rule has ever produced ; the
"confusion in the cases," which the Court fears, is nothing like as fearsome as the obfusca-
tion and unreason which such a rule fixes into the law). 1913, Estes ■». Chicago B. & Q.
R. Co., — la. — , 141 N. W. 49 (cause of a river-bar, allowed). 1913, State ». Wilson, — la.
— , 141 N. W. 337 (whether a wounded person could have walked, etc., allowed). ■ 1914,
State 11. Hessenius, — la. — , 146 N. W. 58 ("What in your opinion caused the death?"
allowed). ,
Kan. : 1905, Sun Ins. Office v. Western W. M. Co., 72 Kan. 41, 82 Pac. 513 (whether wet
wool was capable of spontaneous combustion, allowed). 1912, State v. Buck, 88 Kan. 114,
127 Pac. 631 ("an opinion upon the cause of death ... is admissible").
Md. : 1909, Consolidated G. E. L. & P. Co. v. State, 109 Md. 186, 72 Atl. 651 (whether
lineman could know of danger in wires, excluded ; another backward turn given to the law).
Mass. : 1904, Baxter v. Gormley, 186 Mass. 168, 71 N. E. 575 (by a complainant in bastardy,
that the defendant was the father of her child, allowed). 1905, Gones v. New Bedford Co.,
187 Mass. 124, 72 N. E. 840 (whether one's hand could be caught in a gear, if covered, al-
lowed). 1906, Erickson v. American S. & W. Co., 193 Mass. 119, 78 N. E. 761 (cause of
bursting of a steam-pipe, allowed).
Mich. : 1885, Geveke v. G. R. & I. R. Co., 57 Mich. 277, 24 N. W. 675 (what caused a
horse's fright, allowed). 1894, McCuIIough v. R. Co., 101 Mich. 234, 59 N. W. 618 (same).
1905, Foster v. East Jordan L. Co., 141 Mich. 316, 104 N. W. 617 (what caused a horse's
461
§ 1976 OPINION RULE
[Note 1 — continued]
fright, allowed). 1909, Potter v. Grand Trunk W. R. Co., 157 Mich. 216, 121 N. W. 808
(possibility of emission of sparks, allowed). 1914, People v. Macgregor, — Mich. — , 144
N. W. 869 (whether arsenic was the cause of a death, allowed).
Mo. : 1904, Wood, v. Metropolitan St. R. Co., 181 Mo. 433, 81 S. W. 152 (whether an
injury was the cause of a disease, allowed ; good opinion by Gantt, P. J.). 1904, Redmon
V. Metropolitan St. R. Co., 185 Mo. 1, 84 S. W. 26 (similar). 1905, Taylor v. Grand Ave.
R. Co., 185 Mo. 239, 84 S. W. 873 (whether certain injuries "might, could, or would result
in paralygis," allowed, but not whether, in the particular patient as examined by the physi-
cian, the injuries were the cause of paralysis ; this quibble is justified by the following re-
filled distinction : "To the trained legal mind there is a very essential difference between
permitting an expert to give ^n opinion and permitting him to draw a conclusion"; to
which it may be said that if the "trained legal mind" signifies one which has been infected
by the rabies of such quibbling, then the community now lu-gently needs a Pasteur process
which shall stay the ravages of such an affliction in the profession). 1905, Glasgow v.
Metropolitan St. R. Co., 191 Mo. 347, 89 S. W. 915 (corporal injury ; "it was competent
for the learned witnesses to state what cause or causes might produce such a result, . . .
but it was incompetent for them to say that in this case the plaintiff's condition was in
their opinion the result of the alleged fall," and then a long critique on the tweedledum and
tweedledee of this distinction; it is singular that learned judges become so absorbed in
the wild fancies of the Opinion rule that their common sense is buried for the purposes of
justice). 1907, Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709 (whether a fall did cause
a necessity for amputation, and not merely was a sufficient cause therefor, improper).
1911, State V. Hyde, 234 Mo. 200, 136 S. W. 316 (murder by poison; "what that man died
from," excluded; another of these absurd and unpractical muzzlings of, experts). 1911,
McAnany v. Henrici, 238 Mo. 103, 141 S. W. 633 (whether a crack in a molding must have
existed, not allowed ; an old-fashioned opinion, harping on the dead technical impropriety
of using experts ; the rule is much over-strictly stated, i.e. that the expert is not admissible
unless the jurors as laymen "are incapable of drawing cbrrect conclusions" ; the whole
opinion is typical of hundreds which resemble a stern practical judicial determination to
get at the actual facts as much as a child's g:ame of ' ' muggins " resembles the destiny-direct-
ing diplomacy of Bismarck).
Nebr. : 1905, Horst v. Lewis, 71 Nebr. 365, 103 N. W. 460 (whether wounds were sufficient
to cause death, allowed).
N. Mex.: 1905, Miera v. Terr., 13 N. M. 192, 81 Pae. 586 (that a wound was not self-
inflicted, allowed).
N. D. : . 1904, Meehan v. Great Northern R. Co., 13 N. D. 432, 101 N. W. 183 (cause of a
coupling's breaking, not allowed).
N. Y. : 1905, Schutz «. Union R. Co., 181 N. Y. 33, 73 N. E. 491 (cause of a derailment,
excluded ; whether a car could leave the track if properly laid, etc., not allowed). 1910,
People v. Fiorentino, 197 N. Y. 560, 91 N. E. 195 (to a defendant, on an issue of self-defence,
"Why is your coat cut and there are no cuts on your body?" allowed; sensible opinion).
1911, McRorie v. Monroe, 203 N. Y. 426, 96 N. E. 724 (capacity of a vehicle to make a turn
in a certain space, allowed). 1914, Marx v. Ontario B. H. & A. Co., — N. Y. — , 105 N. E.
97 ("Did this blow cause the injuries?" not allowed).
N. C. : 1911, Deppe v. Atlantic C. L. R. Co., 154 N. C. 523, 70 S. E. 622 (whether steam-
pipes were the cause of a fire, not allowed).
Old. : 1913, Miller v. State, 9 Okl. Cr. 255, 131 Pac. 717 (that death was caused by strangu-
lation, allowed).
Or. ; 1906, State v. White, 48 Or. 416, 87 Pac. 137 (what caused an injured man's condition,
allowed).
S. C. : 1903, Riser v. Southern R. Co., 67 S. C. 419, 46 S. E. 47 (whether a certain shock pro-
duced a certain injury, excluded). 1905, Biggers v. Catawba P. Co., 72 S. C. 264, 51 S. E.
882 (whether the danger could have been avoided, etc., allowed). 1906, Nickles ». Sea-
462
OPINION RULE § 1977
[Note 1 — continued]
board A. L. R. Co., 74 S. C. 102, 54 S. E. 254, 255 (cause of a derailment, excluded). 1906,
Fitzgerald v. Langley Mfg. Co., 74 S. C. 232, 54 S. E. 373 (cause of the shifting of a pulley-
belt, excluded). 1911, Hand v. Catawba Eower Co., 90 S. C. 281, 73 S. E. 186 (that a dam
caused destruction of water-power, allowesd).
S. D. : 1905, Klingaman v. Fish & H. Co., 19 S. D. 139, 102 N. W. 601 (how long an injured
condition would continue, allowed).
Tenn. : 1914, Cumberland Tel. & Tel. Co. v. Peacher Mill Co.,— Tenn. — , 164 S. W. 1144
(whether afire was "probably due to the lightning," etc., not allowedfor an electrical expert ;
whether a certain cause "covM or might produce the condition " is allowable, but not whether
it "probably did" ; and so the Law again slams the door in the face of Science ; but, before
long, the door will be taken off its hinges. Science will be given an unlimited franchise to
enter, and Mummery will be cast out and delivered over to the dark places of Oblivion).
Tex.: 1908, Metropolitan Life Ins. Co. v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120
(whether a wound was self-inflicted, excluded, but whether it was made with a pen-knife,
admitted; another case of tweedledum and tweedledee). 1912, Freeman v. Grashel,
— Tex. Civ. App. — , 145 S. W. 695 (whether a floor depression was due to uneven rolling
of wheels, allowed).
U. S.: 1912, MTntyre v. Modern Woodmen, C. C. A., 200 Fed. 1 (a physician's opinion
as to the cause of death, founded on facts testified to by other physicians, must be based
on their supposed facts only, and not on their inferences from facts ; a piece of quibbling
of the sort which accounts for the medical profession's attitude towards the legal profes-
sion, — a sorrowful and amazed disgust).
Va. : 1904, Norfolk R. & L. Co. v. Spratley, 103 Va. 379, 49 S. E. 502 (probable effect of a
corporal injxu-y, allowed). 1911, Johnson v. Com., Ill Va. 877, 69 S. E. 1104 (what force
caused an abrasion, allowed).
Wash. : 1913, Patrick v. Smith, 75 Wash. 407, 134 Pac. 1076 (cause of depletion of well-
water).
Wis.: 1904,Lyon». GrandRapids, 121 Wis. 609,99 N.W.311.(cause of adisease, allowed).
1904, Hallum v. Omro, 122 Wis. 337, 99 N. W. 1051 (that injuries "were Uable to be per-
manent," allowed).
§ 1977. Distance, Time, Speed, Size, Weight, Direction, Form, Identity, etc.
[Note 2 ; add, under Distance and Size :]
1907, People v. Helm, 152 Cal. 532, 93 Pac. 99 (width of a bicycle track, allowed).
1905, State v. Voorhies, 115 La. 200, 38 So. 964 (how far the gun was from the deceased,
allowed).
1905, Turley v. State, 74 Nebr. 471, 104 N. W. 934 (comparative size of boot-tracks, allowed).
[Note 2; add, under Speed:]
1903, Montgomery St. R. Co. v. Sh»iks, 139 Ala. 489, 37 So. 166 ("it looked very fast,"
allowed).
1904, Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28 (of a street car, allowed) . 1904,
Chicago City R. Co. v. Matthieson, 212 111. 292, 72 N. E. 443 (that a horse "ran fast and
was wild," allowed). 1906, Chicago City R. Co. v. McDonough, 221 111. 69, 77 N. E. 577
(that a car was going "at full speed," allowed).
1906, Cook V. Stimson M. Co., 41 Wash. 314, 83 Pac. 419 (speed of a train, excluded).
[Note 2 ; add, under Direction :]
1904, Wilson v. U. S., 5 Ind. Terr. 610, 82 S. W. 924 (position of an arm when wounded,
excluded).
1906 Miera v. Terr., 13 N. M. 192, 81 Pac. 586 (that the victim shot must have been sit-
ting down, allowed).
463
§ 1977 OPINION RULE
[Note 2 ; cdd, under Identity :]
1906, DuBose v. State, 148 Ala. 560, 42 So. 862 (that certain tracks were the defendant's,
excluded). 1911, Pope v. State, 174 Ala. 63, 57 So. 245 (whether a mule would have made
track similar to another track observed, allowed; three judges diss.).
1906, People v. Gray, 148 Cal. 507, 83 Pac. 707 (that a person's description tallied, excluded
on the facts).
1904, Alford v. State, 47 Fla. 1, 36 So. 436 (buggy-tracks). 1905, Jordan v. State,
50 Fla. 94, 39 So. 155 (person).
1908, Johnson v. State, 55 Fla. 46, 46 So. 155 (mark in sand made by spur-leather).
1911, People V. Jenning's, 252 111. 534, 96 N. E. 1077 (experts admitted to interpret finger-
prints by the science of dactylos copy).
1908, Craig v. State, 171 Ind. 317, 86 N. E. 397 (identity of an assailant).
1909, State v. Whitbeck, 145 la. 29, 123 N. W. 982 (similarity of hair, by a non-expert, al-
lowed, one of the kinds of hair not being at hand) .
1905, State v. Hopper, 114 La. 557, 38 So. 452 (shoes). 1906, State v. Graham, 116 La.
779, 41 So. 90 (of shoe-tracks).
1905, State v. Miller, 71 N. J. L. 527, 60 Atl. 202 (spots on clothing).
1905, State v. Rutledge, 37 Wash. 523, 79 Pac. 1123 (police officer's identification of defend-
ants from a description by the person robbed, excluded).
1905, Roszczyniala v. State, 125 Wis. 414, 104 N. W. 113 (accused).
In Texas there is a pretty body of law about testimony identifying by foot-tracks; it is
as curious and as interesting as some of the quaint rituals of the Aztec priesthood ; the fol-
lowing opinions collect some of the cases :
1904, Parker v. State, 46 Tex. Cr. 461, 80 S. W. 1008 (similarity of boot-tracks, excluded,
but here because the witness had not sufficiently observed, on the principle of § 660, ante).
1906, Porch v. State, 50 Tex. Cr. 335, 99 S. W. 102.
§ 1978. Miscellaneous Topics of Testimony.
[Note 1; add:]
1905, Baker v. Cotriey, 142 Ala. 566, 38 So. 130 (how much cotton a tract produced, al-
lowed).
1910, Miller v. State, 94 Ark. 538, 128 S. W. 353 (whether hairs were human, allowed).
1905, Atchison, T. & S. F. R. Co. v. Watson, 71 Kan. 696, 81 Pac. 499 (usual shrinkage of
cattle-weight in transit, allowed).
1912, CedlPaper Co. v. Nesbitt, 117 Md. 59,83 Atl. 254 (usual conduct of mules, excluded).
1905, State v. Olson, 95 Minn. 104, 103 N. W. 727 (whether a liquor was intoxicating, al-
lowed).
1905, Earp v. State, — Miss. — , 38 So. 288 (that the insane do not kill for money, not
allowed).
1904, WilUs V. W. U. Tel. Co. , — N. C. — , 48 S. E. 538 (how much anguish, etc., he suffered
from non-receipt of a telegram, not allowed).
1907, State v. Remington, 50 Or. 99, 91 Pac. 473 (size of a hole which a rifle would make,
allowed).
1904, Brady v. Shirley, 18 S. D. 608, 101 N. W. 886 (whether a colt was sired by a particular
horse, allowed).
1906, Leathertnan v. State, 49 Tex. Cr. 485, 95 S. W. 504 (indictment for vagrancy as a
professional gambler ; whether he was a professional gambler, excluded).
§ 1983. Opinion as to Moral Character of Accused, etc.
[Note 1, par. 1 ; add :]
1904, People v. Tibbs, 143 Cal. 100, 76 Pac. 904 (People v. Wade approved).
1905, People v. Sullivan, 218 111. 419, 75 N. E. 1005 (disbarment; a statement signed by
464
OPINION RULE § 1984
[Note 1 — continued]
numerous judges that the respondent "was never fined, rebuked, or censured" by any of
them, and that his "professional character was never assailed to their knowledge," held to
relate only to the "personal knowledge or personal belief of the signers," and to be therefore
inadmissible).
1905, State v. Richards, 126 la. 497, 102 N. W. 439 (State v. Sterrett, followed).
1906, State v. Simmons, 74 Kan. 799, 88 Pac.-57 (personal opinion inadmissible; certain
forms of expression passed upon). 1908, State v. Tawney, 78 Kan. 855, 99 Pac. 268 ("Do
you know his character, etc. ?" held proper, the term being presumably used for "reputa-'
tion"). 1909, Spain v. Rakestraw, 79 Kan. 758, 101 Pac. 466 (self-defence to a battery ; ■
witness to plaintiff's character as a quarrelsome man ; rule of State v. Johnson, post, § 1985,
applied, but with Uberality).
1904, People v. Albers, 137 Mich. 678, 100 N. W. 908 (personal knowledge, excluded;
People V. Turney not cited).
1907, People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718 (defendant in homicide; "the
personal knowledge and belief of the witness must be excluded").
1907, State v. Dickerson, 77 Oh. 34, 82 N. E. 969 (Gandolfo v. State approved ; "the accused
is not confined to his reputation for a certain trait . . . but may by those most intimate
with him during a course of years spread before the jury his real self").
1909, State v. Hosey, 54 Wash. 309, 103 Pac. 12 (rape under age; defendant's character
proved by opinion based on personal knowledge, expressly declared admissible; Dunbar,
J. : "reputation such as was proved under the old rule was only what a certain given num-
ber of people thought about a man, and was but an enlargement in numbers of what one
man thought or knew about him ; and there seems to be no good reason why the opinion
and knowledge of the one man should be excluded because he is not able to duplicate that
opinion by giving the names of others who have expressed their opinion as to his reputation ' ' ;
but the Court's opinion is open to criticism in that it reaches this result by deduction from
the rule that reputation may consist in not having heard anything against the man;
personal opinion is distinct from that, and the decision should have recognized the
distinction).
[Note 1 ; add, at the end :]
The question, "Do you believe that the defendant (or, a man of his character) would be
likely to commit an act of the kind here charged ? " which was usual in the early orthodox
English practice (as seen ante, § 1981, par. 6, n. 3, and § 59, n. 2), would be equally forbidden
by the American Opinion rule as above accepted ; a few cases showing this are cited ante,
§ 59, n. 3.
§ 1984. Character for Care, Competence, etc.
[Note 3; add:]
1905, First Nat'l Bank v. Chandler, 144 Ala. 286, 39 So. 822 (whether an employee was
"a wide-awake, attentive boy," allowed).
1907, Moore v. Dozier, 128 Ga. 90, 57 S. E. 110 (custody of child; that the mother was
"an unfit person to rear the children," not allowed).
1911, Saunders v. Atchison T. & S. F. R. Co., 86 Kan. 56, 119 Pac. 552 (competence and
skilfulness of an engineer, allowed).
1911, Mayfield Lumber Co. v. Lewis' Adm'r, 142 Ky. 727, 135 S. W. 420 (driver's incom-
petence; excluded; no authority cited).
1905, Southern Pac. Co. v. Hetzer, 135 Fed. 272, 277, 68 C. C. A. 26, semble (fellow-ser-
vant's character, admissible).
1905, Purkey v. Southern C. & T. Co., 57 W. Va. 595, 60 S. E. 755 (opinion as to the com-
petency of a mine-boss, excluded).
465
§ 1984 OPINION KULE
[Note 4, par. 1; add:]
1905, Cleveland v. Martin, 218 111. 73, 75 N. E. 772 (injunction by medical author to re-
strain the publication of a book as not equal to contract and as likely to damage the plain-
tiff's repute ; the opinions of medical men as to the probable or actual injury to repute by
the publication were admitted).
1908, Alexander v. Mud Lake L. Co., 153 Mich. 70, 116 N. W. 539 (wages; testimony to
plaintiff's competency, admitted).
1909, Johnson v. Coughren, 55 Wash. 125, 104 Pac. 170 (injury by a blast; opinions as to
the "competency and fitness of F. to perform his duties as a powder-man," excluded;
Chadwick, J., diss. ; the entire foregoing list of authorities is ignored).
§ 1985. Witness' Moral Character.
[Note I; add:]
1907, Mitchell v. State, 148 Ala. 618, 42 So. 1014 (like Crawford v. State).
1906, Maloy v. State, 52 Fla. 101, 41 So. 791 (personal opinion, excluded).
1904, Taylor v. State, 121 Ga. 348, 49 S. E. 303 (belief on oath, not founded on a knowledge
of general character, excluded).
1907, State v. Blackburn, — la. — , 110 N. W. 275 (rape under age; " Do you know her
general moral character in the neighborhood?" referring to the prosecuting witness, held
an improper form of question).
1908, Hunneman v. Phelps, 199 Mass. 15, 85 N. E. 169 (excluded). 1909, Eastman v.
Boston Elev. R. Co., 200 Mass. 412, 86 N. E. 793 ("Would you believe her on oath?"
excluded, even after a statement as to knowing the reputation).
§ 1986. Policy of the Exclusionary Rule.
[Noted; add:]
The opinion in People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718 (1907) attempts to
answer the above argument.
§ 2000. Comparison of Handwriting ; Principle, etc.
[Text, p. 2666, 1. 10 ; add a new note 2a :]
^^ The scientific value of handwriting comparison is expounded by Mr. Albert S. Osborn,
in his elaborate treatise, "Questioned Documents" (Rochester, 1910).
§ 2004. Lay Testimony to Handwriting Specimens, etc. ; Excluded in
general, etc.
[Note 1; add:]
1910, Murphy v. Murphy, 146 la. 255, 125 N. W. 191 (but this ruling is erroneous on the
facts, for the reason stated ante, § 697, n. 4).
1904, Groff V. Groff, 209 Pa. 603, 59 Atl. 65.
[Text, p. 2669 ; add in line 3 of the § :]
An exception which " proves the rule " is the case of a layman who has
seen a disputed document, now lost, but did not then know the author of it,
and is now asked to compare a specimen of proved authorship and say whether
the lost document was in the same hand. Here the reason of the Opinion
rule falls away; for the jury cannot examine for themselves the lost docu-
466
OPINION RULE §2012
[Text, p. 2669 — continued]
ment, and hence the lay witness can add some information not otherwise
accessible; hence, his opinion, based on comparison, should be allowed.^
' Accord: 1889, Hammond v. Wolf, 78 la. 227 (attorney testifying to a note, now lost,
and formerly placed in his hands for collection).
1891, Sankey v. Cook, 82 la. 125 (an expert who had once seen a contract now lost; here
excluded, solely because the specimen used as a standard was not properly proved genuine).
1910, Murphy v. Murphy, 146 la. 255, 125 N. W. 191 (cited more fully ante, § 697, n. 4).
§ 2006. Same : Old Exception for Ancient Documents.
[Note 1, par. 2, 1. 5; add:]
1911, Nicholson v. Eureka L. Co., 156 N. C. 59, 72 S. E. 86 (not confining the rule to experts)..
§ 200S. Expert Testimony ; Whether Admissible, etc.
[Note 1 ; add :]
Ala. : 1905, Campbell v. Bates, 143 Ala. 338, 39 So. 144 (Gibson v. Trowbridge F. Co.
followed). 1907, Griffin v. Working Woman's H. Ass'n, 151 Ala. 597, 44 So. 605 (papers
otherwise in the case and conceded or proved genuine may be used).
Ga. : 1906, Patton v. Bank, 124 Ga. 965, 53 S. E. 664 (note ; comparison with other signa-
tures admitted genuine and in evidence, allowed).
Ky. : 1907, Pulliam v. Sells, 124 Ky. 310, 99 S. W. 289 (comparison allowed with signatures
admitted by opponent on the stand to be genuine).
La. . For olographic wills, a special line of authorities exists :
Civ. C. § 1655 (must be proved by two witnesses "who must attest that they recognize
the {estament as being entirely written, dated, and signed in the testator's handwriting,
and as having often seen him write and sign during his lifetime" ; for the last clause, Act
119, p. 168, 1896, substituted this : "The judge shall interrogate the witnesses under oath
touching their knowledge of the testator's handwriting and signature, and shall satisfy
himself that they are familiar therewith").
1871, Roth's Succession, 31 La. Ann. 320 (expert testimony admissible in corroboration of
the two witnesses speaking from personal knowledge).
1913, White's Succession, 132 La. 890, 61 So. 860 (rule of Roth's Case followed).
Minn. : 1912, Cochran v. Stein, 118 Minn. 323, 136 N. W. 1037 (Morrison v. Porter ap-
proved).
R. I. St. 1905, § 399 (see pod, § 2016).
1907, Taber v. New York P. & B. R. Co., 28 R. I. 287, 67 Atl. 8 (statute applied).
S. Dak. : 1906, McCIellan's Estate, 20 S. D. 498, 107 N. W. 681 (expert comparison of
photographic reproductions of certain papers with "proved signatures," held not improper
on the facts).
U. S. : 1904, Withaup v. U. S., 127 Fed. 530, 535, 62 C. C. A. 328 (comparison allowable
"if a paper is in evidence in the case for some other purpose, and is admitted or satisfactorily
proven to be" genuine, or if a paper is filed by a party and is part of the record of which the
Court takes judicial notice ; thisissaid to be "clearly established" (?)asthe "common-law
rule" ; here, four papers in a former case were excluded, and two recognizances in the case
at bar were admitted).
§ 2012. Qualifications of the Expert as to Skill.
[Note 3; add:]
1904, State v. Burns, 27 Nev. 289, 74 Pac. 983 (bank teller).
1905, Aberriethy v. Yount, 138 N. C. 337, 50 S. E. 696 (clerk of court).
467
§2015 OPINION RULE
§ 2015. Modes of Testing the Opinion on Cross- Examination.
[Note 2; add:]
1907, Griffin v. Working Women's H. Ass'n, 151 Ala. 697, 44 So. 605 (witness speaking
from knowledge of former writings, allowed to be cross-examined to identity of features
between the document in issue and the former writing; the opinion need not have
noticed this point, for the objection was baseless; Dowdell, J., diss., only as to the former
writing being introduced in evidence, but that was a mere formal matter).
1905, Wooldridge v. State, 49 Fla. 137, 38 So. 3 (a witness to handwriting, not an expert,
not allowed to be tested by other specimens ; apparently an over-strict ruling ; no au-
thority cited).
1905, Jacobs v. Boston El. R. Co., 188 Mass. 245, 74 N. E. 349 (a witness allowed to be
asked on cross-examination to make a sample signature ; the precise point of the ruUng is
however not ascertainable from the opinion).
1904, Taylor v. Taylor's Estate, 138 Mich. 658, 101 N. W. 832 (showing a signature only;
the witness' insistence on seeing the whole of the document, held proper).
1905, People v. Patrick, 182 N. Y. 131, 74 N. E. 843 (testing an expert by proof of his mis-
takes as to selected signatures ; Hoag v. Wright approved ; but the trial Court's refusal
here to allow the tests was held distinguishable, and in any event harmless error).
1904, Groff V. Groff, 209 Pa. 603, 59 Atl. 65 (alleged forgery of a note ; non-expert witnesses
testifying from knowledge of the handwriting, allowed to be tested by signatures shown
through slit's in envelopes and the witnesses' mistakes allowed to be proved ; on the facts,
the showing of the signature alone was held pr6per).
1904, Wilmington S. Bank v. Waste, 76 Vt 331, 57 Atl. 241 (cross-examination by testing
with specimens "conceded or proved to be genuine," allowable).
Compare the various methods illustrated in "Questioned Documerits," by Albert H.
Osborn (Rochester, 1910). All methods having scientific value ought to be freely allowed
by law.
§ 2016. Jury's Perusal of Specimens ; Whether allowable, etc.
[Note 1 ; add :]
Canada : Alta. St. 1910, 2d sess.. Evidence Act, c. 3, § 54 (like Eng. St. 1854, c. 125, § 27).
Ont. St. 1909, c. 43, § 52 (like R. S. 1897, c. 73, § 55).
Sask. St. 1907, Evidence Act, § 36 (like Eng. St. 1854, c. 125, § 27).
Yukon St. 1904, c 5, § 33 (like Eng. St. 1854, c. 125, § 27).
UNITED States : Ala. : 1905, Washington v. State, 143 Ala. 62, 39 So. 388. 1906, Bolton
V. State, 146 Ala. 691, 40 So. 409 (forgery of a check ; other specimens, not otherwise in the
case and not shown genuine, excluded). 1907, Griffin v. Working Women's H. Ass'n,
151 Ala. 597, 44 So. 605 (papers otherwise in the case and admitted or proved genuine
may be used).
Cal. : 1906, Castor v. Bernstein, 2 Cal. App. 703, 84 Pac. 244 (breach of contract assigned
to plaintiff ; plea, release ; the assignment offered by the plaintiff was allowed to be used
by the defendant for the jury's inspection in determining the genuineness of the release,
without any further evidence; Cooper, J., diss.).
Fla. : 1905, Wooldridge v. State, 49 Fla. 137, 38 So. 3 (forging of school warrants ; Rev. St.
1892, § 1121, held applicable to criminal cases ; under this statute, specimens of the forger's
writing, and not merely of that of the person whose name is forged, are admissible ; repudiat-
ing the doctrine of Peck v. Callaghan, N. Y.).
Ga. : 1904, Vizard v. Moody, 119 Ga. 918, 47 S. E. 348 (other specimens, including that of
an affidavit to the plea, admitted).
Ida. : 1905, State v. Seymour, 10 Ida. 699, 79 Pac. 825 (Bane v. Gwinn followed).
III. : 1911, Stitzel v. Miller, 250 111. 72, 95 N. E. 53 (the plaintiff bank was indorsee of a note
payable to H. M. and signed by D. C. M. deceased; in an action of 'assumpsit, D. C. M.'s
468
OPINION RULE § 2016
[Note 1 — continued]
administrator denied the genuineness of the maker's signature ;, and offered to show that
the signature was a traced facsimile of the signatures on two other notes purporting to be by
D. C. M., neither of which was otherwise in the case ; held that the usual limitations did
not apply, this not being similarity of a specific person's type of hand, but identity of writing
irrespective of the writer ; careful opinion by Carter, J.).
Ind.: 1911, Williams®. State, 175 Ind. 93, 93 N.E. 448 (forgery; Tucker «. Hyatt followed).
St. 1913, c. 312, p. 840, Mar. 15 (wherever "the genuineness of the handwriting of any per-
son may be involved, any admitted or proved handwriting of such person shall be com-
petent evidence as a basis for comparison by witnesses or by the jin-y, court, or officer
conducting such proceedings, to prove or disprove such genuineness"). 1914, Kahn v.
State, — Ind. — , 105 N. E. 385 (documents "in the case, which the party is estopped to
deny, and such others as are admitted to be genuine," are alone admissible).
Kan. : 1904, State v. Ryno, 68 Kan. 348, 74 Pac. 1114 (State v. Stegman followed).
Ky. : 1907, Howard v. Creech, — Ky. — , 101 S. W. 974 (statute appUed).
Mich.: 1906, People v. ToUefson, 145 Mich. 449, 108 N. W. 751 (forgery; hotel register,
admitted for comparing accused's signature, no proper objection being made).
1907, Brown v. Evans, 149 Mich. 429, 112 N. W. 1079 (comparison with an affidavit on file
in the case, allowed).
Mo. : 1907, State v. Stark, 202 Mo. 210, 100 S. W. 642 (Rev. St. 1899, § 4679 applied, on
an issue of a forged deed).
N. J. : 1908, State v. Skillman, 76 N. J. L. 474, 70 Atl. 83 (writings otherwise in the case,
admitted).
N. Y. St. 1909, c. 65, p. 24, Feb. 19 (placing St. 1880, c. 36, § 1, in C. C. P. as § 961d).
N. C. : 1906, Shelton's Will, 143 N. C. 218, 55 S. E. 705 (Fuller v. Fox followed).
1908, Martin v. Knight, 147 N. C. 564, 61 S. E. 447 (execution of a note and a duebill, the
contents being by M. and the signature purporting to be by F. ; documents allowed to be
shown to the jury, the witnesses explaining the grounds for their opinion as to similarity
or difference ; prior cases exhaustively examined ; able opinion by Connor, J.).
N. C. St. 1913, c. 52, p. 98 (Hke Eng. St. 1854, c. 125, § 27).
iV. D.: 1910, Cochrane v. National Elev. Co., 20 N. D. 169, 127 N. W. 725 (specimen
conceded genuine, admitted).
Pa. : 1904, Groff v. Groff, 209 Pa. 603, 59 Atl. 65 (statute applied, to allow comparisons
for jury and experts). St. 1913, No. 300, June 6, p. 451 (amending St. 1895, May 15, § 1 ;
instead of "a question as to any simulated or altered document or writing," read "a, ques-
■ tion as to any writing").
R. I. St. 1905, § 399 (hke the English Act).
S. D.: 1904, State v. Coleman, 17 S. D. 594, 98 N. W. 175 (whether writings proved or
admitted genuine may be used, though not otherwise evidence in the case; not decided).
1905, Mississippi L. & C. Co. v. Kelly, 19 S. D. 577, 104 N. W. 265 (a writing "admitted
or proved" genuine is admissible, though not otherwise in the case).
Tex.: 1904, Mahon v. State, 46 Tex. Cr. 234, 79 S. W. 28 (perjury in an affidavit; to
identify the defendant as the signer, an application for witness-process, signed by him, was
admitted for the jury's inspection, without caUing experts; loose opinion, citing only two
of the above cases). 1908, Wade v. Galveston H. & S. A. R. Co., — Tex. Civ. App. — .
110 S. W. 84 (Kennedy v. Upshaw followed).
U. S. : 1904, Withaup v. U. S., 127 Fed. 530, 535, 62 C. C. A. 328 ("where a comparison is
permissible, it may be made by the Court and jury, with or without the aid of expert wit-
nesses" ; cited more fully ante, § 2008). 1908, Barnes v. U. S., 5th C. C. A., 166 Fed. 113
(Williams v. Conger followed). 1911, U. S. v. North, D. C. Or., 184 Fed. 151 (ruleof Williams
V. Conger applied, to exclude a document not otherwise in the case). St. 1913, 62d Cong.
3d sess., c. 79, Feb. 26 (37 Stat. L. 683). ("In any proceeding before a court or judicial
officer of the United States where the genuineness of the handwriting of any person may
be involved, any admitted or proved handwriting of such person shall be competent evi-
469
§2016 OPINION RULE
^Note 1 — continued]
dence as a basis for comparison by witnesses, or by the jury, court, or oflScer conducting
such proceeding, to prove or disprove such genuineness")-
Ut: 1906, State v. McBride, 30 Utah 422, 85 Pac. 440 (rule of Tucker v. Kellogg ac-
cepted).
Vt.: 1909, State v. Kent, 83 Vt. 28, 74 Atl. 389 (writings not otherwise in the case, but
"admitted or proved to be genuine," may be used; here, capital letters carved on wood,
etc.).
Va.: 1904, Johnson v. Com., 102 Va. 927, 46 S. E. 789 (forgery of wife's will; specimens
of defendant's and wife's writing, proved to be genuine, admitted).
W. Va. St. 1907, c. 39, p. 224 (in any civil or criminal proceeding "any writing proved to
the satisfaction of the judge to be genuine may be used with or without the testimony of
witnesses for the purpose of making a comparison with a disputed writing as evidence of
the genuineness or otherwise of such disputed writing").
§ 2017. Ancient Dociunents.
[Note 1; aM:]
1822, Cantey v. Piatt, 2 McCord 260.
1906, McCreary v. Coggeshall, 74 S. C. 42, 53 S. E. 978 (an ancient letter; comparison
with ancient official records by the same alleged author, admitted).
§ 2018. Unfair Selection of Specimens.
[Note 5 ; add :]
1909, State v. Barris, 78 N. J. L. 14, 73 Atl. 248 (under Gen. St. 1896, quoted ante, § 2016,
the limitation excluding specimens made after controversy does not apply to specimens
not offered by the party in whose hand they are, and in particular not to the State using a
forgee's specimens; furthermore, specimens made by the alleged forger after the date of
the document in issue are admissible).
1906, Greenwald v. Ford, 21 S. D. 28, 109 N. W. 516 (checks ; a signature made since the
time of the signature in dispute is not thereby inadmissible, unless "manufactured since
the controversy arose, for the purpose of comparison, by one having a motive to fabricate").
§ 2020. Specimens "Proved" Genuine; Mode of Proof.
\Note 3, par. 1; add:]
1906, State v. McBride, 30 Utah 422, 85 Pac. 440 (testimony of the prosecutrix based only
on the defendant's oral admissions of authorship, without other evidence, held insufficient ;
Straup, J., diss., and correctly, because the present question was strictly not involved, but
thatof §699, araie).
1908, State v. Ryder, 80 Vt. 422, 68 Atl. 652 (proof by persons familiar with the handwriting,
sufficient).
[NoteS, par. 2; add:]
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (the "equivalent evidence" which may
serve instead of "direct evidence" may be circumstantial, and must merely not be opinion
testimony resting solely on "comparison with another standard or with an exemplar in his
own mind"; here, certain sale-slips were held sufficiently proved).
1909, Newton Centre Trust Co. v. Stuart, 201 Mass. 288, 87 N. E. 630 (under the circum-
stances, the trial Court's refusal to pass upon certain specimens offered as standards, be-
cause their genuineness was disputed, held improper ; the specimen need not be evidenced
iby persons who saw them written, but may be evidenced by extra-judicial admissions).
470
OPINION RULE §2024
[Note 3 — contimied]
In Massachusetts it is now also further maintained, in accordance with the heterodox
views of that Court in analogous questions {ante, § 861, post, § 2550), that the trial Court's
ruling admitting proved specimens is provisional only, and that the jury may in criminal
cases further reconsider and may reject the specimens as not genuine : 1905, Com. v. Tucker,
189 Mass. 457, 76 N. E. 127.
§ 2021. Specimens "Admitted" to be Genuine.
[Note 1; add:]
1906, Stark J). Burke, 131 la. 684, 109 N. W. 206 (the witness' "admission" of genuine-
ness is not the party's, so as to entitle the document to be treated as one conceded to be
genuine).
[Note 2; add:]
1905, Prank v. Berry, 128 la. 223, 103 N. W. 358 (defendant's own signed answer in the
cause, admitted, since a statute required every pleading to be signed by himself or his
attorney).
Contra: 1906, State v. Branton, 49 Or. 86, 87 Pac. 535 (letters orally admitted by the
defendant to be his, in conversation with a witness, were apparently held admissible, under
a statute receiving writings "admitted or treated as genuine").
§ 2024. Expert Testimony to Ink, Paper, Spelling, etc.
[Note 1 ; add :]
1909, State v. Kent, 83 Vt. 28, 74 Atl. 389 (pecuUar method of using a period in punctuation,
admitted).
[Note 2; add:]
1906, State v. Freshwater, 30 Utah 442, 85 Pac. 447 (marks left by a defective type-
writer).
1905, Huber Mfg. Co. v. Claudel, 71 Kan. 441, 80 Pac. 960 (typewritten and typesigned
letters to defendant from plaintiff ; agent of defendant allowed to identify them, without
specifying reasons ; "there might have been" some pecuUarity in the typewriting).
1893, Levy v. Rust, — N. J. Eq. r— , 49 Atl. 1017 (genuineness of seven receipts ; type-
writing marks considered as evidence of forgery).
1912, People v. Storrs, 207 N. Y. 147, 100 N. E. 730 (forgery of a typewritten document;
to evidence the defendant's authorship, a specimen, typewritten on the defendant's machine,
but otherwise irrelevant, was received; not as coming literally under C. C. P. § 961(Z,
but as governed by the principle of mechanical traces, ante, § 148).
On all these matters, in their scientific probative aspect, consult Albert S. Osborn's "Ques-
tioned Documents" (Rochester, 1910).
[Note 3; add:]
1909, R. 1). Law, 19 Man. 259 (anonymous libels; comparison with admittedly genuine
specimens as to style of expression, etc., held allowable, for experts, but not for the jury
alone without experts; this qualification is unsound).
1886, Scott V. Crerar, 11 Ont. 541, 14 Ont. App. 152 (cited more fully arde, § 87).
1840, Brown v. Kimball, 25 Wend. 259, 261, 272 (a deed dated 1770, on a printed form end-
ing "Commonwealth aforesaid," the land being in Massachusetts; evidence that Massa-
chusetts was always described in deeds up to 1780 as a "Province" or "State," but not a
"Commonwealth," used to show that the deed was a later forgery).
On all the above points, compare also the citations ante, § 570.
471
§2025 QUANTITATIVE RULES
§ 2025. Deciphering Illegible Writings.
[Note 1, par. 1; add:]
1910, State v. Sysinger, 25 S. D. 110, 125 N. W. 879.
Contra: 1903, In re Hopkins, 172 N. Y. 360, 65 N. E. 173 (whether cancellation marks on
a testator's signature were made by him ; expert testimony not allowed, under Laws 1880,
c. 36, § 1, cited ante, § 2016; unsound).
§ 2026. Imitations, Forgeries.
[Note 3, par. 1 ; add :]
1905, McGarry v. Healey, 78 Conn. 365, 62 Atl. 671 (whether a disguised hand would show
the original characteristics, etc.).
1911, Stitzel V. Miller, 250 111. 72, 95 N. E. 53 (identity of traced signatures, allowed;
cited more fully ante, § 2016, n. 1).
Ind. St. 1905, p. 584, § 238 (Rev. St. 1697, § 1892, re-enacted).
1907, Rinker v. U. S., 151 Fed. 755, 760, C. C. A. (whether the hand was genuine or dis-
guised).
1905, Colbert v. State, 125 Wis. 423, 104 N. W. 61 (whether a specimen is in normal hand-
writing).
§ 2027. Erasures, Alterations, Time of Writing.
[Note 1 ; add, under Admitted:]
1913, Putman v. Hamilton, — la. — , 140 N. W. 886 (age of the document).
1911, State V. Smalls, 63 Wash. 172, 115 Pac. 82 (whether words were written at different
times, allowed).
§ 2032. History of Rules of Number.
[Note i, I. 3; add:]
Esmein, "History of Continental Criminal Procedure " (transl.- Simpson ; Continental Legal
History Series, Vol. V), 1913, pp. 57, 516, 620.
[Text, p. 2699, at the end of the quotation ; add a new note 11a :]-
The case cited by Thayer is now to be found in Maitland's edition of the Year Books,
Vol. I (Selden Soc. Pub., Vol. XVII), 2 Ed. II, 1308, No. 54, t). Ill ("And because Tibald's
proof was better and greater," says one text, but another says, "was proved by more").
[Note 22, par. 2, p. 2702 ; add:]
1672, Conn. Revision, p. 69 ("It is ordered by this Court that no person for any fact com-
mitted shall be put to death without the testimony of two or three witnesses, or that which
is equivalent thereunto" ; this is still the law in Connecticut ; post, § 2044, n. 1).
§ 2034. General Principle ; One Witness may Suffice, etc.
[Note 1, p0,r. 1 ; add:]
Okl. Stats. 1903, § 68, art. 10.
The same language is sometimes expressly used by Courts :
1909, Catchings v. State, 6 Ga. App. 790, 65 g. E. 815. 1910, Hudgins v. State, 7 Ga. App.
785, 68 S. E. 336 (two witnesses against one).
1904, St. Louis & 0. R. Co. v. Union T. & S. Bank, 209 111. 457, 70 N. E. 651.
1904, Indianapolis St. R. Co. v. Johnson, 163 Ind. 518, 72 N. E. 571 ("The preponderance
of evidence does not depend upon the number of witnesses" ; citing cases).
472
REQUIRED NUMBERS OF WITNESSES § 2041
[Note 1 — 'continited]
1909, State v. Blount, 124 La. 202, 50 So. 12 (murder).
1909, Nutting v. Watson, 84 Nebr. 464, 121 N. W, 582 (horse).
1911, MarzuUi v. Metropolitan L. Ins. Co., 81 N. J. L. 166, 78 Atl. 1051.
There is a peculiar and absurd quibble in Wisconsin, used to clarify the jury's mind in
instructing them as to the preponderance of proof {pod, § 2498) : 1905, Garske v. Ridge-
ville, 123 Wis. 503, 102 N. W. 22 (the trial Court charged that the preponderance "is not
to be determined by the number of witnesses on either side, or by the number of witnesses
on any particular material point" ; this is held erroneous, by weird logic).
[Note 2,1 2; add:]
1904, Bradley v. Gorham, 77 Conn. 211, 58 Atl. 689.
1906, Alexander v. Blackman, 26 D. C. App. 541, 544.
1904, Hauser v. People, 210 111. 253, 71 N. E. 416. 1905, Chicago Union T. Co. v. O'Brien,
219 111. 303, 76 N. E. 341 (there is no presumption "that an unimpeached witness has
testified truly, and such instructions infringe upon the province of the jiuy to determine
the credibility of the witnesses").
1909, Arnd v. Aylesworth, 145 la. 185, 123 N. W. 1000.
1908, Lindenbaum v. N. Y. N. H. & H. R. Co., 197 Mass. 314, 84 N. E. 129. 1908, Bearse
V. Mabie, 198 Mass. 451, 84 N. E. 1015.
This loose and futile but not uncommon heresy that an unimpeached or uncontradicted
witness must be beUeved is illustrated in the following opinions :
1905, Keene v. Behan, 40 Wash. 505, 82 Pac. 884.
1908, Larson v. Glos, 235 111. 584, 85 N. E. 926 (with some variation).
Still less is there any presumption that a contradicted witness speaks truthfully :
1908, State v. Halverson, 103 Minn. 265, 114 N. W. 957 (good opinion by ElUott, J.).
§ 2036. Treason ; History of the Rule.
[Note 20, p. 2716, 1. 7; inseH:]
now reprinted in "Select Essays in Anglo-American Legal History," vol. I (1907; Ass'n
of American Law Schools).
[Note 20, at the end ; add:]
Similar evidence will be found in the learned essay of Professor Edward Jenks, " The Con-
stitutional Experiments of the Commonwealth " (1890), pp. 54, 82.
§ 2039. Same : Constitutional Sanctions.
[Note 2; add:]
Ind. St. 1905, p. 584, § 247.
N. Mex. Const. 1910, Art. II, § 16.
§ 2040. Two Witnesses in Perjury ; History.
[Note%; add:]
1913, Gaskell's Case, 8 Cr. App. 103 (rule applied).
§ 2041. Same : Policy of the Rule.
[Note 1; add:]
Mr. Wm. A. Purrington has forcefully commented on "The Frequency of Perjury" (Colum-
bia Law Review, VIII, 67 ; 1908).
473
§2042 REQUIRED NUMBERS OF WITNESSES
§ 2042. Perjury : (c) A Single Witness, if Corroborated, Suffices.
[NoteS; add:]
St. 1911, 1-2 Geo. V, c. 6, § 13 (no person to be convicted of perjury, or subornation thereof,
"solely upon the evidence of one witness as to the falsity of any statement alleged to be
false").
[iVofe4; add:]
Cal. St. 1903, c. 532 (adds a new P. C. § 1103a, like the last clause of C. C. P. 1872, § 1968,
supra).
1906, Cleveland v. State, 50 Tex. Cr. 6, 95 S. W. 521 (the witness must be a "credible" one).
[Note 5; add:]
1906, People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384 (instruction construed).
1905, Cook V. U. S., 26 D. C. App. 427.
1892, Com. V. Davies, 92 Ky. 460, 18 S. W. 10 (rule applied). 1905, Goslin v. Com., 121
Ky. 698, 90 S. W. 223 (rule applied). 1907, Stamper v. Com., — Ky. — , 100 S. W. 286
(rule applied). 1913, Partin v. Com., 154 Ky. 701, 159 S. W. 542 (form of instruction de-
clared).
1904, State v. Hunter, 181 Mo. 316, 80 S. W. 955 (State v. Heed followed).
1907, State v. Pratt, 21 S. D. 305, 112 N. W. 152 (citing some decisions not included in the
note to this text).
1912, Allen v. U. S., C. C. A., 194 Fed. 664 (an instruction requiring two witnesses or one
witness with corroborative circumstances, held erroneously refused; nature of corrobora-
tion discussed).
1905, State v. Rutledge, 37 Wash. 523, 79 Pac. 1123 (the corroboration need not be "of
equal weight" to another witness).
It has very sensibly been held that if the defendant himself takes the stand, his manner
as a witness may sufficiently supply the corroboration, of which the jury alone judges ; so
that the rule virtually falls away : 1884, State v. Miller, 24 W. Va. 802, 807.
[NoUfi; add:].
Accord: 1887, U. S. v. Thompson, 31 Fed. 331, C. C. (subornation of perjury ; the perjurer's
testimony need not be corroborated).
1906, Boren v. U. S., 144 Fed. 801, 805, C. C. A., semhle (subornation of perjury; the rule
does not apply).
Contra: 1869, People v. Evans, 40 N. Y. 1 (subornation of perjury; the testimony of the
perjurer, testifying to both perjury and subornation, required to be corroborated; the
opinion proceeds upon the rule as to accomplices, post, § 2056).
[Note 7; add:]
1913, R. V. Curry, N. Sc. S. C, 12 D. L. R. 13,
[Text, p. 2725 ; add a new paragraph (5) :]
(5) The rule should not apply necessarily to a charge of subornation of
perjury, because the act of subornation does not involve the theory of oath
against oath, and the perjury may be evidenced by the perjured witness
himself, whose present testimony is thus not opposed to the testimony for
the prosecution.^"
'" Cases cited supra, n. 6, and post, § 2060, n. 1 (rule for accomplices).
1913, State v. Richardson, 248 Mo. 563, 154 S. W. 735 (subornation; the rule is here not
applicable to proof of the perjury; cases collected).
474
REQUIRED NUMBERS OF WITNESSES §2047
§ 2043. Same : (d) Exception for Contradictory Oaths.
[Note 2 ; add, under Contra :]
1904, State v. Hunter, 181 Mo. 316, 80 S. W. 955.
1889, State v. Buckley, 18 Or. 228, 22 Pac. 838.
[Note 3, par. 1 ; add, under Contra :]
1906, Billingsley v. State, 49 Tex. Cr. 620, 95 S. W. 520 (there must be other evidence than
the contradictory oath).
1876, Schwartz v. Com., 27 Gratt. 1025 (leading opinion, by Staples, J.).
A New York statute of 1906 (c. 324, amending Penal Code, § lOlo) seems to provide in
part on this point (in perjury, the falsity shall be presumptively established by proof of
the defendant's contrary testimony under oath "in any other written testimony, declaration,
deposition, certificate, affidavit, or other writing by him subscribed").
§ 2044. Sundry Crimes, under Statutes.
[Note 1 ; add :]
Ont. : 1906, R. v. Daun, 12 Ont. L. R. 227, 231 (rule of Dom. Crim. Code, § 684, supra,
appUed, in a charge of seduction).
Cal. St. 1905, c. 532 (amends P. C. 1872, § 1110, as to the crimes covered).
Conn. : 1905, State v. Marx, 78 Conn. 18, 60 Atl. 690 (the trial Court need not define the
meaning of "equivalent thereto," under the above statute). 1905, State v. Kelly, 77
Conn. 266, 58 Atl. 705. 1905, State v. Bailey, 79 Conn. 589, 65 At. 951. 1908, State v.
Washelesky, 81 Conn. 22, 70 Atl. 63 (State v. Smith followed).
Fla. St. 1907, c. 5688, p. 201, May 11 (amending Gen. St. § 3558 ; U. S. revenue license or
tax stamp in possession of alleged dealer in liquors may be proved "by two witnesses who
have seen said license or tax stamp," etc.).
Ind. St. 1905, p. 584, § 238 (pliraseology of Rev. St. 1897, § 1892, amended ; larceny is an
exception).
§ 2046. Divorce Charge denied.
[Note 4; add:]
1904, Lenoir v. Lenoir, 24 D. C. App. 160, 165 (cited post, § 2067, n. 10).
1904, Cotter v. Cotter, — N. J. Eq. — , 58 Atl. 73. 1905, Sabin v. Sabin, — N. J. Eq. — ,
59 Atl. 627. 1906, Hunt v. Hunt, — N. J. Eq. — , 59 Atl. 642. 1905, Wood v. Wood,
— N. J. Eq. — , 62 Atl. 429. 1905, Kline v. Kline, — N. J. Eq. — , 61 Atl. 160 (desertion) .
1907, Foote v. Foote, 71 N. J. Eq. 273, 65 Atl. 205 (desertion). 1908, Topfer v.
Topfer, — N. J. Eq. — , 68 Atl. 1071 (desertion).
[Note 6, par. 2 ; add, under Accord :]
1898, Andrews ». Andrews, 120 Cal. 186, 52 Pac. 208 (nature of corroboration, defined).
1905^ Avery v. Avery, 148 Cal. 239, 82 Pac. 967 (similar).
1908, Bell V. Bell, 15 Ida. 7, 96 Pac. 196.
§ 2047. Chancery Bill denied by Defendant's Oath.
[Note 4, par. 1 ; add, under Rule Applied:]
1906, Northwest E. I. Co. v. Campbell, 28 D. C. App. 483, 493.
1904, Parken v. Safford, 48 Fla. 290, 37 So. 567.
1904, Evans v. Evans, — N. J. Eq. — , 59 Atl. 564.
1904, McGary v. McDermott, 207 Pa. 620, 57 Atl. 46.
1881 Vigel V. Hopp, 104 U. S. 441. 1885, Conly v. Nailor, 118 U. S. 127, 6 Sup. 1001.
475
)
§2047 REQUIRED NUMBERS OF WITNESSES
[Note 4 — conMnued] ,
1892, Monroe Cattle Co. ii. Becker, 147 U. S. 47, 13 Sup. 217. 1903, Jacobs v. Van Sickle,
127 Fed. 62, 61 C. C. A. 598.
1906, Phelps V. Root, 78 Vt. 493, 63 Atl. 941 (but here the rule is emasculated by declaring
that "circumstantial evidence may take the place of the testimony of one or both witnesses,
if of equal weight and credibility").
[Note 4, par. 1 ; add, under Repudiated:]
1904, Thibodeaux v. Thibodeaux, 112 La. 906, 36 So. 800 (apparently qualifying Rush v.
Landers).
§ 2048. Wills, etc., in Fennsylvania.
[^■0^8; add:]
1884, Combs' Appeal, 105 Pa. 155.
1893, Simrell's Estate, 154 Pa. 604, 26 Atl. 599.
1899, McKenna v. McMichael, 189 Pa. 440, 42 Atl. 14.
1906, Michell v. Low_, 213 Pa. 526, 63 Atl. 246.
1906, Fallon's Estate, 214 Pa. 584, 63 Atl. 889.
1913, Rhoads' Estate, 241 Pa. 38, 88 Atl. 71 (statute held not satisfied because each witness
did not separately depose to all the facts, following Hock v. Hock).
§ 2050. Nuncupative Wills.
[Note 5 ; add :]
1905, Godfrey v. Smith, 73 Nebr. 756, 103 N. W. 450 (statute applied).
[Note 5; add:]
N. Y. St. 1914, c. 443, § 2611 (Surrogates' courts; for a nuncupative will, "its execution
and tenor must be proved by at least two witnesses").
N. C. Rev. 1905, § 3127 (like Code 1883, § 2148).
§ 2051. Holographic Wills, etc.
[Note 2; add:]
N. C. Rev. 1905, §§ 3113, 3115, 3127 (like Code 1883, §§ 2136, 2176).
§ 2052. Contents of a Lost WiU.
[Note 1; add:]
1913, Thorman's Estate, — la. — , 144 N. W. 7.
[Note 3; add:]
1909, Patterson's Estate, 155 Cal. 626, 102 Pac. 941 (C. C. P. § 1339 does not prevent the
establishment by two witnesses, of a part only ; good opinion by Shaw, J.).
1910, Guinasso's Estate, Guinasso v. Arata, 13 Cal. App. 518, 110 Pac. 335 (a person who
only heard another read a document aloud is not one witness under this rule).
1906, Inlow V. Hughes, 38 Ind. App. 375, 76 N. E: 763 (all the provisions to be established
must be proved by two witnesses, in the absence of a written copy proved).
N. Y. St. 1914, c. 443, § 2613 (surrogates' courts ; "a lost or destroyed will can be admitted
to probate in a surrogate's court," in a case where by C. C. P. § 1865 "a judgment estab-
lishing the will could be rendered by the Supreme Court").
Compare the rules for restoring the record of lost documents, including wills (ante, § 1660).
476
REQUIRED NUMBERS OF WITNESSES § 2056
§ 2053. Usage or Custom.
[Note 2; add:\
1908, Jones v. Herrick, 141 la. 415, 118 N. W. 444 (custom in driving teams; one witness
suiBces).
1906, Biggs ». Langhammer, 103 Md. 94, 63 Atl. 198, semhle (marine charter).
1906, McDonough ». Boston EI. R. Co., 191 Mass. 509, 78 N. E. 141.
1905, Penland v. Ingle, 138 N. C. 456, 50 S. E. 850 (brokerage custom).
[Note 3, par. 2 ; add :]
and what degree of certainty must be reached in the proof {post, § 2498).
§ 2054. Local Rules in Miscellaneous Civil Cases.
[Note 1; add:]
1904, Pioso V. Bitzer, 209 Pa. 503, 58 Atl. 891 (rule applied).
[Note 4, par. 1 ; add :]
Perhaps also in New Jersey : 1905, Wilson v. Terry, 70 N. J. Eq. 231, 62 Atl. 310 (apparently-
approving this rule for a deed absolute intended as a mortgage).
Compare the cases cited post, § 2498, n. 17 (proof beyond a reasonable doubt).
[Text, par. (2), at the 6nd; add:]
It has been held in a few jurisdictions that a claim against a decedent's estate
cannot be sufficiently established by the decedent's oral admissions alone.*"
'" 1906, Clarke v. Roberts' Estate, 38 Colo. 316, 87 Pac. 1077.
1855, Wilder v. Franklin's Ex'r, 10 La. An. 279.
1883, Bodenheimer v. Bodenheimer's Ex'r, 35 La. An. 1005.
1855, Portis v. Hill, 14 Tex. 69.
Compare the rule for corroboration of a survivor (post, § 2065).
In Arkansas, by an analogous rule, a wife's testimony to the consideration
of a parol contract for a conveyance to her from the insolvent husband
must be corroborated in chancery.**
*" 1905, Davis ». Yonge, 74 Ark. 161, 85 S. W. 90, semhle. 1905, Waters v. Merrit P. Co.,
76 Ark. 252, 88 S. W. 879 ("by some other evidence of the existence of a vaUd debt").
[Note 5; add:]
Alia. St. 1913, 2d sess., c. 27, § 4 (dangerous animals; an order of impounding may be
made "upon hearing the evidence of two credible witnesses other than the complainant,"
where no claimant appears).
Cal. St. 1903, c. 364 (substituting a new chapter in the Political Code, for a lunacy com-
mission; § 2169 provides that on a proceeding to commit, the judge "must compel the
attendance of at least two medical examiners, who must hear the testimony of all witnesses,
make a personal examination of the alleged insane person, and testify before the judge as
to the result of such examination, and to any other pertinent facts within their knowledge").
La.: 1904, Hannay v. New Orleans C. Exchange, 112 La. 998, 36 So. 831 (Code rule ap-
plied). 1905, Morris v. Pratt, 114 La. 98, 38 So. 70.
§ 2056. Uncorroborated Accomplice ; History and Present State of the Law.
[Note 1 ; add :]
England: 1908, R. v. Tate, 2 K. B. 680 (the omission of the caution renders the verdict
invalid, where no corroboration existed, in the appellate Court's opinion).
477
§ 2056 REQUIRED NUMBERS OF WITNESSES
#
[Note 1 — continued]
Canada: 1912, Rex v. Betchel, 4 Alta. 402, 6 D. L. R. 497 (abortion; the judge should
give a caution to the jury, but a verdict without corroborative evidence is valid).
1910, R. V. Frank, 21 Ont. L. R. 196 (following R. v. Meunier). 1910, R-. v. Trapnell, 22
Ont. L. R. 219, 224.
1908, R. V. Reynolds, 1 Sask. 480.
[Note&; add:]
1904, State v. Carey, 76 Conn. 342, 56 Atl. 632 (leading opinion, by Hamersley, J.). 1911,
State V. Kritchman, 84 Conn. 152, 79 Atl. 75.
1905, Caldwell «. State, 50 Fla. 4, 39 So. 188 (murder).
1904, Tong Kai v. Terr., 15 Haw. 612 (bribery).
1906, Juretich v. People, 223 III. 484, 79 N. E. 181 (false pretences). 1908, People v. Frank-
enburg, 236 111. 408, 86 N. E. 128. 1908, People v. Feinberg, 237 111. 348, 86 N. E. 584.
1912, People v. Baskin, 254 111. 509, 98 N. E. 957 (receiving stolen goods). 1914, People v.
Covitz, 262 111. 514, 104 N. E. 887.
1904, State v. Hauser, 112 La. 313, 36 So. 396.
1912, Schuster v. State, 178 Ind. 320, 99 N. E. 422.
1896, Com. V. Bishop, 165 Mass. 148, 42 N. E. 560. 1906, Com. v. Phelps, 192 Mass. 591,
78 N. E. 741.
1909, State v. Shelton, 223 Mo. 118, 122 S. W. 732.
1904, State v. Lyons, 70 N. J. L. 635, 58 Atl. 398 (murder). 1904, State v. Simon, 71
N. J. L. 142, 58 Atl. 109. 1911, State ii. Lieberman, 80 N. J. L. 606, 79 Atl. 331. 1912,
Letts V. Letts, 79 N. J. Eq. 630, 82 Atl. 845.
1903, State v. Register, 133 N. C. 746, 46 S. E. 21.'
\1913, State v. Hare, 87 Oh. 204, 100 N. E. 825 (bribery).
1912, Com. V. De Masi, 234 Pa. 570, 83 Atl. 430.
1887, U. S. V. Thompson, 31 Fed. 331, C. C. 1905, Wong Din v. U. S., 135 Fed. 702, 68
C. C. A. 340 (conspiracy to evade immigration law). 1910, Hohngren v. U. S., 217 U. S.
509, 30 Sup. 588, semble. 1912, Keliher v. U. S., C. C. A., 193 Fed. 8 {contra: "It is well
known that the rule in Massachusetts has always been as stated in Roscoe," citing Com.
V. Bosworth, but erroneously treating it as laying down a rule of law).
1901, State v. Harras, 25 Wash: 416, 65 Pac. 774 (State v. Coates followed). 1905, State
V. Pearson, 37 id. 405, 79 Pac. 985 (refusal to give a long instruction requiring corroboration
under certain circumstances, held error; the opinion harks back to Edwards v. State,
throws doubt on the intervening rulings, and then declines to lay down any rule ; a good
example of the kind of cobwebby opinion directed more to arachnidial athletics than the
demands of plain certainty in criminal justice). 1909, State v. Jones, 53 Wash. 142, 101
Pac. 708. 1911, State v. Ray, 62 Wash. 582, 114 Pac. 439. 1911, State v. Stapp, 65 Wash.
438, 118 Pac. 337. 1911, State v. Dalton, 65 Wash. 663, 118 Pac. 829. 1911, State v.
Mallahan, 66 Wash. 21, 118 Pac. 898. 1912, State v. Wappenstein, 67 Wash. 502, 121
Pac. 989.
1894, State v. Juneau, 88 Wis. 180, 59 N. W. 580. 1905, Murphy v. State, 124 Wis. 635,
102 N. W. 1087. 1905, Means v. State, 125 Wis, 650, 104 N. W. 815.
1906, Clay v. State, 15 Wyo. 42, 86 Pac. 17 ("[The question] was discussed by this Court
in Smith v. State, but was not decided" ; here again left undecided).
[Note 10; add:]
1913, Fairgrieve v. State, — Okl. — , 134 Pac. 837 (an instruction is obligatory). 1913,
Gillam v. State, — Okl. Cr. App. — , 135 Pac. 441.
In Tennessee and in Texas, statutes have now reverted to the common law rule :
Tenn. St. 1913, 2d Extra Sess., c. 1, p. 659, § 13 (liquor offences ; "the unsupported evidence
of any accomplice" suffices).
478
REQUIRED NUMBERS OF WITNESSES § 2059
[Note 10 — continued]
Tex. : C. Cr. P. 1895, § 391 (quoted mpra). St. 1913, Spec. Sess., c. 31, p. 62, § 16 (liquor
laws; conviction maybe had "on the unsupported evidence of an accomplice or partici-
pant").
[Note 11; add:]
But in California, even under C. C. P. § 2061 (quoted supra, n. 10), the instruction is not
demandable; though the repeated dissent of some of the judges leaves the matter still
partly in controversy; 1903, People v. Wardrip, 141 Cal. 229, 74 Pac. 744. 1904, People
V. Buckley, 143 id. 375, 77 Pac. 169. 1904, People v. Moran, 144 id. 48, 77 Pac. 77. 1904,
People V. Ruiz, 144 id. 251, 77 Pac. 907.
§ 2057. Same : Policy of the Rule.
[Note 1; add:]
1904, Hamersley, J., in State v. Carey, 76 Conn. 342, 56 Atl. 632 (best opinion, analyzing
the development in history and policy).
§ 2059. Same : Nature of Corroborative Evidence required.
[Note 2; add:]
1909, Gay's Case, 2 Cr. App. 327 ("This Court will certainly not hold that the evidence of
a number of accompUces needs any less corroboration than that of one accomplice").
[Note 4; add:]
1913, Payne's Case, 8 Cr. App. 171 (R. v. Neal questioned ; point not decided).
[Note 5; add, under Accord:]
1912, R. V. Eberts, 4 Alta. 310.
[Note 11; add:]
1909, Everest's Case, 2 Cr. App. 130 ("some particular which goes to implicate the ac-
cused"). 1909, Warren's Case, 2 Cr. App. 194 ("It is not sufficient that the accomplice
has said something which was true") ; then comes vacillation again : 1911, Wilson's Case
et al., 6 Cr. App. 125 ("It must not be supposed that corroboration is required, amounting
to independent evidence implicating the accused"). 1911, Blatherwick's Case, 6 Cr. App.
281 ("Everest's Case goes too far ; Wilson's Case is the correct statement of the law").
1911, Dimes' Case, 7 Cr. App. 43 (incest; corroboration necessary for an accomplice).
1913, Watson's Case, 8 Cr. App. 249 (Pickford, J., citing Wilson's Case, thought "that
authority seems to show that corroboration generally that the story is true is sufficient" ;
yet Ridley, J., in argument, harking back a century to Thistlewood's Case, 33 How. St.
Tr. 681, says "An accomplice may be believed without corroboration").
1913, Bloodworth's Case, 9 Cr. App. 80 (not clear; Ridley, J., cites Thistlewood's Case
again). /
[Nate 12; add:]
Wash.: State v. Jones, 63 Wash. 142, 101 Pac. 708.
[NoU 13; add:]
Ala. : 1909, McDaniels s. State, 162 Ala. 25, 50 So. 324.
Ark.: 1905, Chancellor v. State, 76 Ark. 215, 88 S. W. 880.
Cal. : 1904, People v. Balkwell, 143 Cal. 259, 76 Pac. 1017. 1912, People v. Coffey, 161
Cal. 433, 119 Pac. 901.
479
§ 2059 REQUIRED NUMBERS OF WITNESSES
[Note 13 — continued]
Ga.: 1905, Rawlins v. State, 124 Ga. 31, 52 S. E. 1.
Ida. : 1906, State v. Bond, 12 Ida. 424, 86 Pac. 43 (murder).
Ky.: 1904, Mann,». Com., — Ky. — , 79 S. W. 230 (felonious assault). 1907, Simpson v.
Com., 126 Ky. 441, 103 S. W. 332 (murder).
La.: 1905, State v. Hopper, 114 La. 557, 38 So. 452 (manslaughter).
Mont. : 1912, State v. Lawson, 44 Mont. 488, 120 Pac. 808.
Nev.: 1913, State v. Williams, 35 Nev. 276, 129 Pac. 316.
N. D.: 1911, State v. Reilly, 22 N. D. 353, 133 N. W. 914.
Okl.: 1905, Hill v. Terr., 15 Okl. 212, 79 Pac. 757. 1906, Barbe v. Terr., 16 Okl. 562, 86
Pac. 61. 1906, Fisher v. Terr., 17 Okl. 455, 87 Pac. 301 (here the instruction omitted the
words of the statute "or the circumstances thereof," though it added other words requiring
corroboration of the circumstances connecting the defendant ; for this reason alone a new
trial was ordered ; which demonstrates that freedom from bigoted traditions of antiquated
technicality is not necessarily to be looked for in the Courts of a new and advanced com-
munity). 1907, Coopar v. Terr., 19 Okl. 496, 91 Pac. 1032.
Or.: 1907, State v. Kelliher, 49 Or. 77, 88 Pac. 867 (forgery). 1912, State v. Wong Si
Sam, 63 Or. 266, 127 Pac. 683.
S. D. : 1910, State v. Walsh, 25 S. D. 30, 125 N. W. 295 (State v. Hicks not cited). '
Tex.: 1905, Wright v. State, 47 Tex. Cr. 433, 84 S. W. 593. 1905, Crenshaw v. State, 48
Tex. Cr. 77, 85 S. W. 1147 (this Court appears disposed to enter upon some questionable
quibblings in the wording of charges).
Ut. : 1906, State v. Thoippson, 31 Utah 228, 87 Pac. 709 (adultery).
Vt. : 1905, State v. Bean, 77 Vt, 384, 60 Atl. 807 (Massachusetts rule approved).
Wyo.: 1906, Clay v. State, 15 Wyo. 42, 86 Pac. 17.
[Note 15, par. 1 ; add:]
1909, Lane v. Com., 134 Ky. 519, 121 S. W. 486.
[Note 15, par. 2, at the end ; add:]
In Keliher v. U. S., C. C. A., 193 Fed. 8 (1912) the supposed Massachusetts rule is applied
without any notice of the later cases.
[Note 15, par. 2, 1. 4 from the end; add:]
and continued in Com. ». Phelps, 192 Mass. 591, 78 N. E. 741 (1906).
[Noie'15,pa,T.3; add:]
1896, People v. Mayhew, N. Y. (cited infra, n. 18),
1905, People v. Patrick, N. Y. (cited infra, n. 18).
1908, Barrett's Case, 1 Cr. App. 64 ("some material parts of the evidence").
1912, State v. Dodson, 23 N. D. 305, 136 N. W. 789.
[Note 17; add:] '
In Idaho these two phrasings are combined: 1905, State v. Knudtson, 11 Ida. 524,
83 Pac. 226 (interpreting Rev. St. 1887, § 7871, quoted ante, § 2056).
[Note 18; add:]
1910, Kams' Case, 4 Cr. App. 8. 1910, Lucy's Case, 4 Cr. App. 165. 1910, Mason's
Case, 5 Cr. App. 171. 1910, Martin's Case, 5 Cr. App. 1.
1906, Hargrove v. State, 125 Ga. 270, 54 S. E. 164 (murder).
1914, Deaton v. Com., 157 Ky. 308, 163 S. W. 204.
1905, People v. Patrick, 182 N. Y. 131, 74 N. E. 843.
1914, Gillespie v. State, — Tex. Cr. — , 166 S. W. 135 (wherein the Court finds itself obliged
480
REQUIRED NUMBERS OF WITNESSES § 2060
[Note 18 — continued]
to repudiate "the impression which prevails with some" that the corroborating evidence
"must itself show appellant's guilt without and exclusive of the accomplice's testimony";
it is painful to think that such a belief could be entertained by a lawyer holding a brief in
an appellate court).
§ 2060. Same : Who is an Accomplice 7
[Note 1, par. 1; add:]
1903, Porter v. People, 31 Colo. 508, 74 Pac. 879 (larceny).
1906, Hargrove v. State, 125 Ga. 270, 54 S. E. 164 (murder).
1913, Hendrix v. State, 8 Okl. Cr. 530, 129 Pac 78 (gaming).
1904, State v. Phillips, 18 S. D. 1, 98 N. W. 171 (larceny).
[Note 1, par. 2; add:]
1912, People v. Coffey, 161 Cal. 433, 119 Pac. 901.
1912, State v. Wappenstein, 67 Wash. 502, 121 Pac. 989 (approving State v. Dumam,
Minn.).
[Note 1, par. 3; add:]
Accord: 1887, U. S. v. Thompson, 31 Fed. 331, C. C. (subornation of perjury).
[Note 1, par. 4; add:]
1913, Newman j>. People, 55 Colo. 374, 135 Pac. 460.
[Note 2; add:]
1909, State v. Brown, — la. — , 121 N. W. 513.
1912, Letts V. Letts, 79 N. J. Eq. 630, 82 Atl. 845.
1912, State v. Case, 61 Or. 265, 122 Pac. 304.
[Not^ 3 ; add, imder Accord :]
1910, Brown's Case, 6 Cr. App. 24; 1911, Brine's Case, 7 Cr. App. 43 (incest; the girl
held not an accomplice on the facts). 1913, Bloodworth's Case, 9 Cr. App. 80 (not
clear).
1904, People v. Stratton, 141 Cal. 604, 75 Pac. 166 (like Porath v. State, Wis., infra).
1905, Whidby v. State, 121 Ga. 588, 49 S. E. 811.
1908, State v. Goodsell, 138 la. 504, 116 N. W. 605 (unless "the victim of force, fraud, or
undue influence," or unless she is under age). 1912, State v. Heft, V55 la. 21, 134 N. W.
950 (ignoring State v. Kouhus, infra).
1906, State v. Mungeon, 20 S. D. 612, 108 N. W. 552.
1903, Tate v. State, — Tex. Cr. — , 77 S, W. 793 (if she consents).
1904, Clifton v. State, 46 Tex. Cr. 18, 79 S. W. 824 (for one who "did nol^ oppose the act").
[Note 3 ; add, under Contra :]
1910, Gaston v. State, 95 Ark. 233, 128 S. W. 1033.
1905, State v. Rennick, 127 la. 294, 103 N. W. 159 (here the intercourse was by force).
1912, State v. Homaday, — Or. — , 122 Pac. 304 (apparently without qualification).
The real futility ,of this accomplice rule is well seen in the opinions on this question
whether the woman in incest is an accomplice ; it is obviously a matter of the individual
case, and will not submit to a rigid rule ; any such rule on this subject is solemn gabble.
[Note 4; add:]
1909, Reeves v. Terr., 2 Okl. Cr. 351, 101 Pac. 1039.
481
§2060 REQUIRED NUMBERS OF WITNESSES
[Note 5 ; add :]
1900, Winstpn v. Winston, 165 N. Y. 553, 59 N. E. 273 (it is "not a rule of evidence, but one
for the guidance of the judicial conscience").
1914, Yates v. Yates, — N. Y. — , 105 N. E. 195 (rule held not appUcable on the facts).
[Note 6, par. 1 ; add :]
1905, Washington v. State, 124 Ga. 423, 52 S. E. 910 (reviewing and, approving Keller v.
State, supra).
[Note 7; add:]
Accord: 1904, State v. Carey, 76 Conn. 342, 56 Atl. 632 (best opinion, by Hamersley, J.).
1912, Meno v. State, 117 Md. 435, 83 Atl. 759.
1904, Smartt v. State, 112 Tenn. 539, 80 S. W. 586.
Contra: 1912, R. v. Betchel, 4 Alta. 402.
Mo. St. 1907, p. 245, Mar. 16 (dying declarations of woman in abortion cases ; cited more
fully ante, § 1432).
[Note 8; add:]
Conira: 1908, R. v. Tate, 2 K. B. 680 (boy of 16).
[Note 9, par. 1 ; add:]
1909, Bickley's Case, 2 Cr. App. 53. 1910, Henser's Case, 6 Cr. App. 76.
1908, O'Grady v. People, 42 Colo. 312, 95 Pac. 346.
■1910, State v. Lee, 228 Mo. 480, 128 S. W. 987 (gaming).
1911, State V. Smith, 33 Nev. 438, 117 Pac. 19.
1905, Marmer v. State, 47 Tex. Cr. 424, 84 S. W. 830 (Uquor offence ; here by express
statute);
Compare the cases ante, § 969, as to a detective's testimony being less credible.
[Note 10; add:]
An accomplice's vnfe may need corroboration : 1913, PajTie's Case, 8 Cr. App. 171.
[Note 11 ; add, under Contra:]
1910, Davis v. State, 96 Ark. 7, 130 S. W. 547 (abortion; McFalls v. State approved).
[Note 12; add, under Accord:]
1907, Driggers v. U. S., 7 Ind. Terr. 752, 104 S. W. 1166.
1912, Smith v. Com., 148 Ky. 60, 146 S. W. 4. 1914, Deaton v. Com., 157 Ky. 308,
163 S. W. 204.
1908, Driggers v. U. S., 21 Gkl. 60, 95 Pac. 612.
1908, Franklin v. State, 53 Tex. Cr. 547, 110 S. W. 909 (but the judge should charge peremp-
torily, where there is no doubt).
[NoteU; add:]
1912, State v. Wong Si Sam, 63 Or. 266, 127 Pac. 683.
§ 2061. Uncorroborated Complainant in Rape, etc.
[Notel; add, wader Accord:]
(1) Rape: 1904, People v. Keith, 141 Cal. 686, 75 Pac. 304.
1904, Peckham v. People, 32 Colo. 140, 75 Pac. 422 (rape under age).
1907, Fields v. State, 2 Ga. App. 41, 58 S. E. 327 (assault with intent to rape ; rule of Davis v.
State, infra, refused to be extended to assault with intent).
482
• REQUIRED NUMBERS OF WITNESSES § 2061
[Note 1 — continued]
1905, State v. Dilts, 191 Mo. 665, 90 S. W. 782. 1906, State v. Welch, 191 Mo. 179, 89 S. W.
945 (following State v. Marcks).
1904, Brenton v. Terr., 15 Okl. 6, 78 Pac. 83 (repudiating Sowers v. Terr., infra, which pur-
ported to go upon a statute; "this Territory has no statute" applicable to rape). 1904,
Brenton v. Terr., 15 Okl. 10, 78 Pac. 84. 1909, Reeves v. Terr., 2 Okl. Cr. 351, 101 Pac.
1039.
1905, Wallace v. State, 48 Tex. Cr. 548, 89 S. W. 827 (rape under age).
1903, State v. Fetterly, 33 Wash. 699, 74 Pac. 810 (rape under age).
1905, State v. Patchen, 37 Wash. 24, 79 Pac. 479 (rape under age). 1906, State v. Mobley,
44 Wash. 549, 87 Pac. 816 (rape under age).
1909, Vogel V. State, 138 Wis. 316, 119 N. W. 190.
(2) Seduction: 1913, Bray v. V. S., 39 D. C. App. 600 (seduction). 1906, Wrynn v.
Downey, 27 R. I. 464, 63 Atl. 401 (breach of promise).
(3) Bastardy: 1910, Belford v. State, 96 Ark. 274, 131 S. W. 963. 1874, McFarland v.
People, 72 111. 368, semble.
1905, Evans ». State, 165 Ind. 369, 74 N. E. 244.
1881, State v. McGlothlen, 56 la. 544, 9 N. W. 893.
(4) Ba^e under Age : 1912, Kidwell v. U. S., 38 D. C. App. 566 (rape under age ; corrobora-
tion not technically necessary ; but here a verdict was set aside for lack of it).
1911, State V. Brown, 85 Kan. 418, 116 Pac. 608.
1912, State v. Stackhouse, 242 Mo. 444, 146 S. W. 1161.
1908, Leedom «. State, 81 Nebr. 586, 116 N. W. 496. 1910, State v. Fugita, 20 Nebr. 665,
129 N. W. 360.
1911, State V. Rash, 27 S. D. 185, 130 N. W. 91.
(5) Incest: 1909, State v. Aker, 54 Wash. 342, 103 Pac. 420.
(6) Improper LibeHies: 1910, People v. Freeman, 244 111. 690, 91 N. E. 708 (but the evi-
dence must be "most clear and convincing").
[Note 1, par. 2; add, under Contra:]
(1) Rape: 1906, Livinghouse v. State, 76 Nebr. 491, 107 N. W. 864 (rape under age).
1904, Davis v. State, 120 Ga. 435, 48 S. E. 180 (by a majority). /
1913, Allen v. State, — Okl. Cr. App. — , 134 Pac. 91, semhle.
(2) Bastardy: see the early English cases for married women's filiation proceedings, post,
§ 2063.
[Note 2, par. 2; under England, add:]
(1) Rape under Age, Incest, Indecent Assault. 1909, Cohen's Case, 3 Cr. App. 234 (car-
nal knowledge ; St. 48-9 Vict. c. 69 applied). 1909, Hedges' Case, 3 Cr. App. 262 (statute
applied). 1910, Graham's Case, 4 Cr. App. 218 (carnal knowledge ; here the extraordinary
statement is made by Channell, J., that "it is not a case in which corroboration is neces-
sarily required"). 1910, Brown's Case, 6 Cr. App. 24, 148 (here the extraordinary state-
ment in Graham's Case, supra, is extraordinarily repeated ; but on the present charge under
the Incest Act 1908, 8 Edw. VII, c. 45, § 2, it is said that "the jury ought to have been cau-
tioned against acceptiilg the uncorroborated evidence of the girl"). 1910, Stone's Case,
6 Cr. App. 89 (similar to Brown's Case). 1913, Pitt's Case, 8 Cr. App. 126 (indecent as-
sault, not under St. 48-9 Vict., on a girl of 10; "a jury may act on her uncorroborated evi-
dence," but a caution as to a young child's evidence "is always wise"). 1913, Murray's
Case, 9 Cr. App. 248 (similar ; the jury ought to be directed to require corroboration, where
the child is not on oath). 1913, Cratchley's Case, 9 Cr. App. 232 (sodomy with boys of
12 and 10 ; similar direction, but not mentioning the oath).
(2) Bastardy: 1852, R. v. Pearcy, 17 Q. B. 902 (corroboration found, under the statute).
1877, Cole V. Manning, L. R. 2 Q. B. D. 611 (under St. 35 & 36 Vict. c. 65, § 4, acts of
familiarity held a corroboration on the facts of the case). 1913, Mash s. Darley, [1914]
483
§ 2061 REQUIRED NUMBERS OF WITNESSES
[Note 2 — contimied]
1 K. B. 1 (bastardy ; the defendant's conviction of the carnal intercourse with the com-
plainant, held sufficient corroboration).
(4) Cruelty: 1904, St. 4 Edw. VII, c. 15, § 15 (Prevention of Cruelty to Children Act;
similar to St. 52 & 53 Vict. c. 44, supra).
[Note 2 ; add, under Canada :]
Dmn. Crim. Code 1892, § 684 (quoted ante, § 2036, n. 22 ; the rule for treason is made
applicable to fraudulent marriage and seduction; but note that it is not of the present
type of rule, which requires corroboration for the prosecutrix, but of the former type, ante,
§ 2044, which requires corroboration for a single witness of any isort).
Alta. St. 1910, 2d sess., c. 3, Evidence Act, § 11 (Uke B. C. St. 1900, c. 9. § 3). 1912, R.
B.Whistnant, Alta. S. C, 8 D. L. R. 468 (indecent assault on a child of 12, under Cr. Code,
§ 1003 ; testimony of another child; here her sister aged 9, held not sufficient corrobora-
tion).
Br. C. : 1910, R. v. Irnan Din, 15 Br. C. 476 (indecent assault on boys ; statute applied).
Man. : 1903, Cockerill v. Harrison, 14 Man. 366 (English statute for breach of promise,
held in force, and applied). St 1912, 2 Geo. V, c. 29, § 6 (illegitimate children, filiation of;
no order to be made "unless the evidence of the mother is corroborated by some other ma-
terial evidence implicating the accused ").
Ont. : 1906, R. v. Daun, 12 Ont. L. R. 227, 231 (Dom. Crim. Code 1892, § 684, cited mipra.
applied, on a charge of seduction). 1906, R. v. Burr, 13 Ont. L. R. 485 (seduction; corrob-
' oration broadly defined). 1907, R. v. Armstrong, 15 Ont. L. R. 47 (rape under age ; Com.
Cr. Code applied). 1909, R. v. Bowes, 20 Ont. L. R. Ill (Cr. Code applied). St. 1909,
c. 43, § 11 (like R. St. 1897, c. 73, § 6). Rev. St. 1897 c. 169, § 2, as amended by St. 1911,
1 Geo. V, c. 36, § 2 (action against father for support of bastard ; no recovery "unless the
fact of the defendant being the father is proved by other testimony than that of the mother
or her testimony is corroborated by some other material evidence of that fact"). 1912,
Dunn V. Gibson, Ont. C. A., 8 D. L. R. 297 (action for assault and ravishment ; rule of corrob-
oration held not applicable).
[Note 2 ; add, under United States :]
Ala. : 1905, Weaver v. State, 142 Ala. 33, 39 So. 341 (corroboration as to "either of the
material facts, so as to satisfy the jury that prosecutrix was worthy of credit" suffices).
Ark. Stats. 1894, § 1900 (no person shall be convicted of seduction under marriage-promise
"upon the testimony of the female, unless the same be corroborated by other evidence").
Cal. St. 1905, c. 532 (amends P. C. 1872, § 1108, as to the crimes named).
III. : 1874, McFarland v. People, 72 111. 368, semble (bastardy ; no rule of corroboration
exists).
Ind. St. 1905, p. 584, § 244 (after "female," substitute, "must be supported by at least one
other witness, or by strong corroborating circumstances as to every material point neces-
sary to the commission of the offence"). 1905, Evans v. State, 165 Ind. 369, 74 N. E. 244
(in bastardy, no corroboration for the mother is necessary). 1905, Evans v. State, 165
Ind. 369, 75 N. E. 651 (under Rev. St. 1897, §§ 1004, 1008, quoted ante, §§ 488, 1326, 1387,
1413, in bastardy no corroboration of the mother is required as a rule of law ; here a married
mother).
la. : 1881, State v. McGlothlen, 56 la. 544, 9 N. W. 893 (bastardy; corroboration is not
required). I
Kan. : 1907, State v. Waterman, 75 Kan. 253, 88 Pac. 1074 (seduction under promise of
marriage; rule applied).
Mo. ; 1914, State v. Long, — Mo. — , 165 S. W. 748.
N. Y. St. 1909, c. 524, p. 1316 (amending Consol. L. c. 40, St. 1909, c. 88, adding a new
§ 2177 for seduction, and amending § 71, for abduction and compulsory marriage; no
conviction is to be had on the female's testimony "unsupported by other evidence").
484
REQUIRED NUMBERS OF WITNESSES § 2062
[Note 2 — continued]
N. C. Rev. 1905, § 3360 (criminal elopement with a married woman ; "no conviction shall
be had upon the unsupported testimony of any such married woman"). 1906, State v.
Connor, 142 N. C. 700, 55 S. E. 787 (statute applied).
S. C. St. 1905, Feb. 22, 24 Stat. L. 937 (seduction; no conviction "on the uncorroborated
testimony of the woman"). 1909, State v. Turner, 82 S. C. 278, 64 S. E. 424 (statute ap-
phed).
Wash. St. 1907, c. 170, p. 396 (no conviction for rape or seduction "upon the testimony
of the female raped or seduced, unless it is corroborated by such other evidence as tends
to convict the defendant of the commission of the offense"). St. 1909, c. 249, p. 942, § 182
(slander of a woman's chastity ; no conviction to be had "upon the testimony of the woman
slandered unsupported by other evidence"). Penal Code 1909, § 191, Rem. & Ball. Code,
§ 2443, replacing the former statute of 1907 repealed by P. C. 1909, § 52, Rem. & Ball. Code,
I, § 2304 (no conviction for rape, seduction, or other sexual crimes, "upon the testimony
of the female upon or against whom the crime was committed, unless supported by other
evidence"). St. 1913, c. 100, p. 298 (repealing Rem. & Ball. Annot. Codes & Stats.
§ 2443).
For the admissibility of pregnancy or birth of a child, as corroborating evidence, see ante,
§168.
§ 2062. Same : Nature of Corroborative Evidence.
[Note 2; add:]
1909, Allen v. State, 162 Ala. 74, 50 So. 279 (Cunningham v. State followed). 1909, Pan-
nell V. State, 162 Ala. 81, 50 So. 281 (similar).
1909, Henderson v. State, 85 Nebr. 444, 123 N. W. 459 (the fresh complaint may suffice as
corroboration ; the opinion makes certain distinctions which seem to be more than any
jury should be expected to understand or any trial judge to remember).
[Note 3 ; add, under Rape :]
la. : 1904, State v. Carpenter, 124 la. 5, 98 N. W. 775. 1904, State v. Egbert, 125 la. 443;
101 N. W. 191. 1905, State v. Norris, 127 la. 683, 104 N. W. 282. 1906, State v. Crouch,
130 la. 478, 107 N. W. 173. 1907, State v. Blackburn, — la. — , 1 10 N. W. 275 (rape under
age). 1907, State v. Johnson, 133 la. 38, 110 N. W. 170. 1907, State v. Stevens, 133 la.
684, 110 N. W. 1037 (rape under age). 1908, State v. Ralston, 139 la. 44, 116 N. W.
1058. 1909, State v. Hetland, 141 la. 524, 119 N. W. 961.
Nebr.: 1907, McConnell v. State, 77 Nebr. 773, 110 N. W. 666 (assault with intent).
1907, Fitzgerald «. State, 78 Nebr. 1, 110 N. W. 676. 1909, Mott v. State, 83 Nebr.
226, 119 N. W. 461 (opportunity alone is not enough).
Wash.: 1909, State v. McCool, 63 Wash. 486, 102 Pac. 422. 1911, State v. Gibson, 64
Wash. 131, 116 Pac. 872. 1912, State v. Raymond; 69 Wash. 98, 124 Pac. 495 (rape; the
corroboration must extend to both the intercourse and the force ; this court is here back-
sUding in, its elaboration of such technical rules ; it was enough to say that there was not
sufficient evidence in this case, without building up a fabric of fixed rules).
f
[Note 3 ; add under Seduction :]
Ark. : 1904, Keaton v. State, 73 Ark. 265, 83 S. W. 911. 1905, Carrens v. State, 77 Ark. 16,
91 S. W. 30. 1905, Burnett v. State, 76 Ark. 295, 88 S. W. 956. 1906, Lasater v. State,
77 Ark. 468, 94 S. W. 59. 1909, Nichols v. State, 92 Ark. 421, 122 S.W. 1003 (must relate
to the promise and the connection).
Ind. : 1912, Hay v. State, 178 Ind. 478, 98 N. E. 712 (seduction; nature of corroboration,
ulSCllSS6Cl) •
Mo. : 1904, State v. Phillips, 185 Mo. 185, 83 S. W. 1080. 1905, State v. Sublett, 191 Mo.
485
§ 2062 REQUIRED NUMBERS OF WITNESSES
[Note 3 — continued]
163, 90 S. W. 374 (defendant's admission may suffice). 1911, State v. Long, 238 Mo. 383,
141 S. W. 1099.
Nebr.: 1907, Russell v. State, 77 Nebr. 519, 110 N. W. 380.
S. D. : 1912, State v. Holter, 30 S. D. 353, 138 N. W. 953 (State v. King followed).
Tex.: 1911, Nash. v. State, 61 Tex. Cr. 259, 134 S. W. 709 (the corroboration need not
cover the essentials of the offence, in particular, both the promise and the intercourse;
Davidson, P. J., diss. ; prior cases reviewed). 1912, Murphy v. State, — Tex. Cr. — ,
143 S. W. 616 (Nash v. State followed).
[Note 3 ; under Abortion, add :]
1911, People V. Richardson, 161 Cal. 552, 120 Pac. 20 (People v. Josslyn approved).
§ 2063. Parent's Bastardizing of Issue, by Testimony to Non-Access.
[Note 11; add:]
1879, Nottingham Guardians v. Tomkinson, L. R. 4 C. P. D. 343 (ruling in Yearwood's
Trusts doubted).
1889, Burnaby v. Baillie, L. R, 42 Ch. D. 282, 294 (similar).
[Note 14, par. 1 ; add :]
Cal. : 1911, People v. Richardson, 161 Cal. 552, 120 Pac. 20 (defendant was charged with
administering drugs with intent to commit abortion, to a woman seduced by him in August,
1908— June, 1909, and married to another man in August, 1909, the child being safely born
alive in December, 1909 ; the mother's testimony to the pregnancy by the defendant, held
not to be excluded by the present doctrine).
Del. : 1912, Bancroft v. Bancroft, — Del. — , 85 Atl. 561 (question not decided).
Ga. : 1854, Wright v. Hicks, 15 Ga. 160, 172 (adulterine bastardy ; the declarations of the
parents, were they alive, were said to be not admissible, "but being dead, they are compe-
tent testimony").
Haw.: 1906, Godfrey v. Rowland, 17 Haw. 577, 583 (rule followed).
St. 1913, No. 83, p. 103, Apr. 15, § 6 (in prosecutions for wife-desertion, etc. the parents
are competent as to "the parentage of such child or children").
Ind. : 1868, Dean v. State, 29 Ind. 483 (bastardy suit by a married woman whose husband
had been absent in the army; the mother admitted as a witness). 1905, Evans v. State,
165 Ind. 369, 74 N. E. 244 (bastardy; the married mother's testimony to non-access of her
husband is admissible).
1905, Evans v. State, 165 Ind^ 369, 75 N. E. 651 (the married mother, on a bastardy charge,
may testify to non-access ; repudiating the policy of the above rule, but reaching the result
under Rev. St. 1897, §§ 1004,.'1008, quoted ante, §§ 488, 1326, 1387, 1413, by refusing to
imply the rule into the statute as a qualification; refusing also to require corroboration
as a rule of law).
la.. 1908, Wallace v. Wallace, 137 la. 37, 114 N. W. 527 (divorce on the ground of wife's
pregnancy by another man at the time of marriage ; a child was born four months after
marriage ; the wife's affidavit of her ante-marital intercourse with the other man and of
lack of intercourse with the husband at the same period, rejected ; but on the former point
alone, the Court would have admitted the affidavits).
Kan. St. 1911, c. 163, p. 247, Mar. 13, § 6 (like Haw. St. 1913, No. 83).
[Note 14, par. 4; add:]
Compare the rulings on corroboration in bastardy {ante, § 2061), and the modern statutes
making parents competent in cases oi family-desertion {ante, § 4-88).
486
REQUIRED NUMBERS OF WITNESSES §2066
§ 2065. Surviving Claimant's Testimony against Deceased.
[Note 2; add:]
Man. : 1906, Doidge v. Mimms, 13 Man. 48, 54 ("There is no distinct law against it ; the
rule is one of prudence only" ; but here it was applied).
N. W. Terr. : 1901, Blank Estate, 5 Terr. L. R. 230 (the rule of corroboration held not
applicable in passing an administrator's account, but only where a claim is contested in
court; Re Garnett and Re Hodgson approved).
[iVote 4,1. 11; add:]
1903, McDonald v. McDonald, 33 Can. Sup. 145 (applying the Nova Scotia statute).
1903, Thompson ■». Coulter, 34 Can. Sup. 261 (applying the Ontario statute).
Alta. St. 1910, 2d sess., c. 3, Evidence Act, §§ 12, 13 (like Ont. Rev. St. 1897, c. 73, §§ 10,
11, as amended by St. 1900, c. 17).
1904, Blacquiere v. Corr, 10 Br. C. 448.
1910, Kaulbach's Estate, Moorhead v. Kaulbach, 45 N. Sc. 62 (each fact material to recovery
must be corroborated). Ont. St. 1909, c. 43, § 12 (like R. S. 1897, c. 73, § 10) ; ib. § 13
(substantially Uke Rev. St. 1897, c. 73, § 11, and St. 1900, c. 17, § 13). 1910, Schwent v.
Roetter, 21 Ont. L. R. 112 (statute applied).
Yukon St. 1904, c. 5, § 35 (Uke N. Sc. Rev. St. 1900, c. 163, § 35).
[Note 5, par. 1 ; add :]
La. St. 1906, No. 207 (no debt or Uability of a "party deceased" shall be proved by parol
evidence except on the "testimony of at least one credible witness of good moral character
besides the plaintiff," unless there is a written acknowledgment or unless action is brought
within twelve months after decease).
N. Mex.: 1910, RadclifPe v. Chavez, 15 N. M. 258, 110 Pac. 699 (statute applied).
Or. Codes & Gen. L. 1892, § 1134, B. &. C.'s ed. 1901, § 1161 (no claim against an executor
or administrator, if rejected by him, shall be allowed "except upon some competent, or
satisfactory evidence other than the testimony of the claimant"). 1904, Goltra v. Pent-
land, 45 Or. 254, 77 Pac. 129 (nature of the corroboration, defined).
In Maryland, an analogous rule requires a claim of contract against a deceased person
to be established by "clear and satisfactory proof from disinterested sources": 1903,
Duckworth v. Duckworth, 98 Md. 92, 56 Atl. 490 (citing the prior cases, and ruling also as
to the use of the deceased's admissions).
Compare the rule in some jurisdictions for the sufficiency of proof of such claims by the
decedent's oral admissions alone {anie, § 2054, n. 4).
§ 2066. Miscellaneous Witnesses requiring Corroboration.
[Note 1 ; add :]
Eng. : 1889, St. 52 & 53 Vict c. 44, § 8 (offences of cruelty to children ; cited ante, § 2061,
n. 2). 1904, St. 4 Edw. VII, c. 15, § 15 (Prevention of Cruelty to Children Act; similar
to the preceding act). St. 1908, 8 Edw. VII, c. 67, § 30 (Children Act ; like St. 48-9 Vict,
c. 69, § 4, for offences against children).
Alta. St. 1910, 2d sess., c. 3, Evidence Act, §-17 (Uke Can. St. 1893, c. 31, § 25).
Sash. St. 1907, c. 12, Evidence Act, § 31 (like Can. St. 1893, c. 31, § 25).
N. Y. : C. Or. P. § 392 (quoted in full, ante, § 1828, n. 1).
[Note 2; add:]
1904, U. S. J). Louie Juen, 128 Fed. 522, D. C. (Chinese witnesses suffice to prove presence
as a merchant before the passage of St. 1892). 1908, In re Martorana, D. C. E. D. Pa.,
159 Fed. 1010. 1908, In re Schatz, C. C. Or., 161 Fed. 237 (the two witnesses to prove at
487
§ 2066 REQUIRED NUMBERS OF WITNESSES
[Note 2 — continued]
the hearing need not be the same two witnesses named in the notice posted prior to the
hearing).
[Note 3 ; add, at the end :]
For the exclusion of Chinese witnesses in similar cases, see avie, § 516.
[NoUA; add:]
For statutes requiring citizens' testimony in naturalization cases, see ante, § 516, n. 7.
[Note 5; add:\
1912, Bancroft v. Bancroft, — Del. — , 85 Atl. 561 (construing St. 1907, c. 221, § 20, vol.
24, replacing Rev. St. 1893, c. 75, § 6).
Contra, for illegal liquor sales :
1911, PickreU ». State, 5 Okl. Cr. 391, 116 Pac. 957.
[Noted; add:]
Mo. St. 1907, p. 245, Mar. 16 (corroboration of the woman's dying declarations in abor-
tion cases; cited more fully ante, § 1432).
Wash. : 1894, Quinn «. Parke & L. M Co., 9 Wash. 136, 37 Pac. 288 (oral rescission of a
written contract; the uncorroborated testimony of a party, held not sufficient). 1903,
Western L. & S. Co. v. Waisman, 32 Wash. 644, 73 Pac. 703 (mortgagors' uncorroborated
testimony, not allowed to overthrow a certificate of acknowledgment). 1904, Cooke s.
Cain, 35 id. 353, 77 Pac. 682 (oral rescission ; Quinn «. P. & L. M. Co., supra, held not to
estabUsh a general rule).
Compare the rule for the measure oi proof beyond a reasonable doubt in civil cases (post,
§ 2498).
In patent causes certain rules appear to have developed : 1908, D'urkee v. Winguist, 31
D. C. App. 248 ("It is well settled that the uncorroborated testimony of a junior party in
an ' interference ' is insufficient to overcome the presumption attaching to the prior filing
date of the senior party"). 1909, Schmidt v. Clark, 32 D. C. App. 290. 1912, Huff v.
GuUck, 38 D. C. App. 334. 1913, Kitchen v. Smith, 39 D. C. App. 500. 1913, Shields v.
Lees, 41 D.C. App. 236.
§ 2067. Uncorroborated Confession of Respondent in Divorce.
[NoUi; add:]
Getty V. Getty, [1907] p. 334 (written confession by wife of adultery committed 19 years
before, not mentioning the name ; corroboration required ; the facts of this case are as
odd as any modem fiction).
1912, fidmonds t. Edmonds, B. C, S. C, 1 D. L. R. 550.
[NoU 10; add:]
Cal.: 1905, Berry v. Berry, 145 Cal. 784, 79 Pac. 531.
D. C. : Code 1901, § 964 (similar to Comp. St. 1894, c. 30, § 33). 1904, Lenoir v. Lenoh,
24 D. C. App. 160, 165 (rule applied in a proceeding for annulment, where on a default the
plaintiff testified by deposition). 1905, Michalowicz v. Michalowicz, 25 D. C. App. 484
(corroboration held not sufficient on the facts).
Ida. : 1908, Bell v. Bell, 15 Ida. 7, 96 Pac. 196 (the confession of the respondent is not suffi-
ciently corroborated by the plaintiff's testimony and admissions; going on the language
of the statute).
Kan.: 1905, May v. May, 71 Kan. 317, 80 Pac. 567 (statutes applied).
Ky.: 1908, Robards «. Robards, — Ky. — 109 S. W. 422 (McCampbell> McCampbell
followed).
488
REQUIRED NUMBERS OF WITNESSES §2071
[Note 10 — contimied]
N. C. Rev. 1905, § 1564 (like Code 1883, § 1288).
Va. Code 1887, § 2260 (in suits for divorce, " the bill shall not be taken for confessed,
and whether the defendant answer or not, the cause shall be heard independently of
the admissions of either party, in the pleadings or otherwise ") .
W. Va. Code 1899, c. 64, § 8 (like Va. Code 1887, § 2260, supra). 1906, Trough v.
Trough, 59 W. Va. 464, 53 S. E. 630 (statute applied).
Compare the cases cited ante, § 2046 (corroboration of divorce complainant).
§ 2069. Same : Scope of the Rule.
[Note 5; add:]
1905, Michalowicz v. Michalowicz, 25 D. C. App. 484.
[Note 8; add:]
1890, Hampton v. Hampton, 87 Va. 148, 12 S. E. 340 (excluded, under the statute quoted
ante, § 2067, n. 10; displacing Bailey v. Bailey, 21 Gratt. 43).
1906, Trough v. Trough, 59 W. Va. 464, 53 S. E. 630 (excluded, under the statute quoted
ante, § 2067, n. 10).
§ 2070. Uncorroborated Confession of Accused ; (1) English Rule.
[Note 5; add:]
1913, Sykes' Case, 8 Cr. App. 233 (murder; corroboration apparently held necessary).
§ 2071. Same; (2) Rule in the United States.
[Note 3; add:]
Ga. : 1909, Milner v. State, 7 Ga. App. 82, 66 S. E. 280. 1910, Huey v. State, 7 Ga. App.
398, 66 S. E. 1023 (assault with intent to rape).
Ind. St. 1905, p. 584, § 239 (substituting "evidence" for "testimony," in Rev. St. 1897,
§ 1893, re-enacted).
Kan. : 1905, State v. Kesner, 72 Kan. 87, 82 Pac. 720. 1913, State v. Cardwell, 90 Kan.
606, 135 Pac. 597, semble (rape under age).
N. J. : 1912, State v. Kwiatkowski, 83 N. J. L. 650, 85 Atl. 209.
Or. : 1904, State v. Rogoway, 45 Or. 601, 78 Pac. 987, 81 Pac. 234 (rule in U. S. v. Williams
approved).
Vt. : 1904, State v. Blay, 77 Vt. 56, 58 Atl. 794 (larceny).
[Note 4; add:]
Ark. : 1905, Miseriheimer v. State, 73 Ark. 407, 84 S. W. 494 (rape^ New York rule fol-
lowed). 1905, Hubbard v. State, 77 Ark. 126, 91 S. W. 11 (murder; foregoing case ap-
proved). 1910, Harshaw v. State, 94 Ark. 343, 127 S. W. 745 (forgery). 1913, Greenwood
V. State, 107 Ark. 568, 156 S. W. 427. 1914, Russell v. State, — Ark. — , 166 S. W. 540
(embezzlement).
Cal. : 1913, People v. Frey, 165 Cal. 140, 131 Pac. 127.
Ga.: 1904, Joiner v. State, 119 Ga. 315, 46 S. E. 412 (wife-beating; corroboration found).
1904, Owen v. State, 119 Ga. 304, 46 S. E. 433 (larceny) ; 1904, Morgan v. State, 120 Ga.
499, 48 S. E. 238 (arson).
III. : 1914, People v. Harrison, 261 111. 517, 104 N. E. 259 (a quibble over the instructions).
Ind.: 1904, Griffiths v. State, 163 Ind. 555, 72 N. E. 563 (corroboration defined). 1909,
Strickland v. State, 171 Ind. 642, 87 N. E. 12. 1911, Messel v. State, 176 Ind. 214,
95 N. E. 565 (stating the rule in a peculiar form, not noting the real point of distinction).
489
§ 2071 REQUIRED NUMBERS OF WITNESSES
[Note 4 — continued] *
Ind. Terr. : 1906, Leftridge v. U. S., 6 Ind. T. 305, 97 S. W. 1018 (homicide ; some evidence
of the corpus delicti is needed).
la. : 1905, State v. Westcott, 130 la. 1, 104 N. W. 341 (murder ; rule of the statute applied
and developed).
Ky. : 1908, Poison v. Com., — Ky. — , 108 S. W. 844 (rule as to instructions, stated).
1911, Higgins v. Com., 142 Ky. 647, 134 S. W. 1135 (murder; Patterson v. Com. followed).
1913, Lee v. Com., 155 Ky. 62, 159 S. W. 648 (burglary ; instruction not needed where the
corpus delicti is independently proved).
Mich.: 1908, People s. Ranney, 153 Mich. 293, 116 N. W. 999 (obtaining money by a
worthless check ; prior cases collected). 1911, People s. Lapidus, 167 Mich. 53, 132 N. W.
470.
Mo. : 1904, State v. Knowles, 185 Mo. 141, 83 S. W. 1083 (embezzlement).
Nebr.: 1905, Blacker v. State, 74 Nebr. 671, 105 N. W. 302 (forgery).
Nev.: 1905, Re Kelly, 28 Nev. 491, 83 Pac. 223 (rape).
OU. : 1909, Shires v. State, 2 Okl. Cr. 89, 99 Pac. 1100.
Or.: 1909, State v. Brinkley, 55 Or. 134, 105 Pac. 708 (larceny; semhle, other admissions
of the accused may suffice as evidence to corroborate the confession).
Tex. : 1912, Harris b. State, 64 Tex. Cr. 594, 144 S. W. 232 ("the confession may be used
to aid the proof of the corpus delicti").
Wash. : 1906, State v. Marselle, 43 Wash. 273, 86 Pac. 586 (rape; here the rule is pedanti-
cally applied).
[Note 6, par. 1 ; add:]
In Messel v. State, 176 Ind. 214, 95 N. E. 565 (1911), the opinion needlessly hesitates
by stating that this "seems to be" thus.
But of course the rule itself does not apply to a committing magistrate's action.
1909, Lundstrom v. State, 140 Wis. 141, 121 N. W. 883 (not decided).
[Text, p. 2780, 1. 5 of the quotation from Bergen v. People :]
hfir "hflrl" inaert "not."
After "had" insert "not.
§ 2072. Same : Definition of Corpus Delicti.
[Note 2, \. 1; add:]
1910, Ausmus i). 'People, 47 Colo. 167, 107 Pac. 204 (stating also but not definitely approv-
ing the orthodox rule).
1907, State v. Pienick, 46 Wash. 523, 90 Pac. 645.
1913, State v. Merrill, — W. Va. — , 78 S. E. 699 (infanticide).
[Note 2, last line ; add :]
1908, State v. Washalesky, 81 Conn. 22, 70 Atl. 63.
[Text, p. 2783, par. (3), 1. 16 on the page; add a new note 2o :]
'" Repudiating this definition :
1911, Messel v. State, 176 Ind. 214, 95 N. E. 565 (rape under age).
[Note 3; add:]
1908, State v. Gebbia, 121 La. 1083, 47 So. 32 (fact of death is the corpus delicti).
1904, State v. Knapp, 70 Oh. 380, 71 N. E. 705 (the term does not include the precise mode
of death as charged, — here, by strangulation).
[Note 4; add:]
Contra: 1911, R. v. Girvin, 3 Alta. 387, 398.
490
REQUIRED KINDS OF WITNESSES §2079
[Note 5, par. 1 ; add :] '
Accord: 1908, People v. Ranney, 153 Mich. 296, 116 N. W. 999 (obtaining money by pass-
ing a worthless check).
Contra: 1904, Johnson v. State, 142 Ala. 1, 37 So. 937 (false pretences; the falsity of the
pretence is part of the corpus delicti, under the present rule).
[Note 5 ; add, after par. 1 :]
Other crimes: 1904, Wistrand v. People, 213 111. 72, 72 N. E. 748 (rape; the age of
the defendant, being part of the corpibs delicti, cannot be evidenced by the confession
alone).
1901, Brown v. State, 85 Miss. 27, 37 So. 497 (breaking and entering with intent).
The following curious statute seems to belong here : Kan. St. 1913, c. 244, p. 423, Mar.
14 (in prosecutions for forgery, "proof that such signatm-e is not in the handwriting of
the person whose signature it pm-ports to be shall be prima facie evidence that the signing
of such name was unauthorized and is a forgery").
§ 2073. Same : Order and Siifflciency of Evidence, etc.
[Note 2, par. 1 ; add, under Accord :]
1904, Scott V. State, 141 Ala. 1, 37 So. 357 (homicide by poisoning; one judge diss.).
1910, People v. Wilkins, 158 Col. 130, 111 Pac. 612.
1908, State v. Washelesky, 81 Conn. 22, 70 Atl. 62.
1905, WiUiams v. State, 123 Ga. 138, 51 S. E. 322 (murder).
1905, State v. Kesner, 72 Kan. 87, 82 Pac. 720. •
1908, State v. Gebbia, 121 La. 1083, 47 So. 32.
[Note 3; add:]
1905, People v. Ward, 145 Cal. 736, 79 Pac. 448 (he must "advise" them to acquit; prior
cases in this State reconciled).
[Text, p. 2785 ; add a new § ;]
§ 2075. Uncorroborated Admissions in Civil Cases. There is no general
rule that the admissions of a party in a civil case are insufficient,
without corroborating evidence, as a foundation for a verdict {ante,
§ 1055). But there are a few such rules limited to admissions in specific
classes of issues, viz. divorce (ante, § 2067) and marriage (post, § 2086), or to
admissions dispensing with certain rules of evidence, viz. documentary originals
(ante, §§ 1255, 1259), and attesting witnesses (ante, § 1300).
§ 2079. In Criminal Cases, All Eye- Witnesses, etc., must be Produced.
[Note 1, at the end ; add:]
By St. 1894, 57 & 58 Vict. c. 41, § 16 (Prevention of Cruelty to Children), providing for
using the child's deposition when its evidence was not "essential," some question arose
whether the cause could be proceeded with at all for lack of the child's testimony ; but a
statute of 1904, 4 Edw. VII, omitted the doubtful clause; the citations are given ante,
§ 1411, n. 1.
[Note 2; add:]
1904, People v. Hossler, 135 Mich. 384, 97 N. W. 754 (like People v. Wolcott, supra).
491
§2079 REQUIBED KINDS OF WITNESSES
[Note 3; add:]
III. : 1912, People v. Baskin, 254 111. 509, 98 N. E. 957 (State may ask the judge to call an
eye-witness). 1912, People v. Rardin, 255 111. 9, 99 N. E. 59 (similar for three indorsed
witnesses).
Ind. St. 1905, p. 584, § 76 (re-enacts Rev. St. 1897, § 1730).
Ky. : 1911, Porter v. Com., 145 Ky. 548, 140 S. W. 643 (two of five eye-witnesses of a homi-
cide; Commonwealth's attorney's discretion controls).
La. : 1878, State v. Williams, 30 La. Ann. 842 (murder ; the calling of certain witnesses
not required ; Michigan rule repudiated ; but the State's attorney's unfair conduct may
be ground for a new trial). 1906, State v. Goodson, 116 La. 388, 40 So. 776 (State v. Gosey
approved). 1906, State v. Stewart, 117 La. 476, 41 So. 798 (assault with intent to kill;
an exception to the judge's refusal "to require the district attorney to call the witnesses to
the res gestcB and to place them upon the stand for examination" was overruled, following
State V. Williams ; the professional duty of the State officer to elicit all the truth "is other
and very different from a right in the accused to require that the district attorney" should
produce all the eye-witnesses; "it may be that some special case might justify special
relief").
Minn.: 1907, State v. Sheltrey, 100 Minn. 107, 110 N. W. 353 (the prosecution held not
bound to call all eye-witnesses or indorsed witnesses ; but either party may comment on
the failure of the other to call, on the principles of § 285, ante).
Pa. : 1908, Com. v. Deitrick, 221 Pa. 7, 70 Atl. 275 (rule repudiated).
S. D. : 1906, State v. Kapelino, 20 S. D. 591, 108 N. W 335 (assault wth intent ; Michigan
rule repudiated). ,
Tex. : 1901, McCandless v. State, 42 Tex. Cr. 655, 62 S. W. 745. 1903, HoUoway v. State,
45 Tex. Cr. 303, 77 S. W. 14 (this and the preceding case leave the rule still unsettled).
1905, Thompson v. State, — Tex. Cr. — , 89 S. W. 1081 (assault ; one eye-witness having
testified, the rule that the others must be called was held not applicable; "it seems that
the later authorities have drifted away from that proposition ; but it is not necessary to
discuss it"; is "drifting away" a process to be viewed with equanimity). 1906, McCrear
V. State, 49 Tex. Cr. 228, 94 S. W. 899 (assault on defendant's wife ; the State not required
to call the wife).
Wis. : 1909, Dillon v. State, 137 Wis. 655, 119 N. W. 352 (rule rejected).
§ 2081. Corpus Delicti must be proved by Eye-Witnesses, etc.
[Note 4, at the end; add:]
In 12 American Criminal Reports 213 (1905), the editor, Mr. John F. Geeting, has a valu-
able note collecting cases, including some not elsewhere noticed. \
[Note 8; add:]
1904, Heyman v. Heyman, 210 111. 524, 71 N. E. 591 (divorce). 1905, Hoch v. People,
219 111. 265, 76 N. E. 356 (murder). 1913, People v. See, 258 111. 152, 101 N. E. 257. 1914,
People V. Goodwin, 263 111. 99, 104 N. E. 1018.
1908, Mason v. State, 171 Ind. 78, 85 N. E. 776 (larceny). 1911, Messel v. State, 176 Ind.
214, 95 N. E. 565 (rape under age). '
1906, Leftridge v. U. S., 6 Ind. T. 305, 97 S. W. 1018 (homicide).
1913, State v. Cardwell, 90 Kan. 606, 135 Pac. 597 (rape under age).
1905, State v. Henderson, 186 Mo. 473, 85 S. W. 576 (murder). 1906, State v. Barrin^ton,
198 Mo. 23, 95 S. W. 235 (murder). 1911, State v. McCord, 237 Mo. 242, 140 S. W. 885
(rape).
1913, Woody v. State, — Okl. Cr. — , 136 Pac. 430 (adultery).
1905, State v. Williams, 46 Or. 287, 80 Pac. 655 (murder). 1906, State «. Barnes, 47 Or.
692, 85 Pac. 998 (murder).
492
REQUIRED KINDS OF WITNESSES § 2085
[Note 8 — coniinited]
1913, State v. Merrill, — W. Va. — , 78 S. E. 699 (infanticide).
1905, Winsky v. State, 126 Wis. 99, 105 N. W. 480 (burglary).
[NoU9; add:]
1905, People v. Patrick, 182 N. Y. 131, 74 N. E. 843 (statute applied).
§ 2082. Proof of a " Marriage in Fact," etc.
[NoteS; add:]
1905, Reaves v. Reaves, 15 Okl. 240, 82 Pac. 490 (summarizing the history).
[Text, p. 2800, 1. 4 from the end ; add a new note 6.]
^ An example of the efficacy of the cohabitation evidence in leading to the inference even
of a ceremonial marriage is seen in Re Shephard, 1904, 1 Ch. 456. An example of the occa-
sional violence of this inference, based on habit and repute only, is found in Travers v.
Reinhardt, 205 U. S. 423, 27 Sup. 563.
§ 2083. Same : Habit and Repute as the Ordinary Evidence.
[Note 1; add:]
Del.: 1902, State ». Miller, 3 Pen. 518, 52 Atl. 262 (information for failure to support
children).
la. : 1906, Smith v. Fuller, — la. — , 108 N. W. 765 (dower).
U. S. : 1907, Travers v. Reinhardt, 205 U. S. 423, 27 Sup. 563.
Wash.: 1909, Weatherall v. Weatherall, 56 Wash. 344, 105 Pac. 822 (bill to establish a
marriage; prior cases reviewed).
[Note 3, par. 1; add:]
Accord: 1906, Ward v. Merriam, 193 Mass. 135, 78 N. E. 745 (slander).
§ 2085. Same : Eye- Witness required for Criminal Conversation and
Bigamy.
[Note 1, par. 1; add:]
1912, Zdrahal v. Shatney, Man. C. A., 7 D. L. R. 554 (criminal conversation; the testi-
mony of the plaintiff alone to a ceremonial marriage, held not sufficient, by two judges;
but Cameron and Haggart, JJ. A., correctly held that "we have the evidence of an eye-
witness, to wit, the plaintiff," and thus the rule of Morris v. Miller was satisfied) .
1905, Snowman v. Mason, 99 Me. 490, 59 Atl. 1019.
[Note 3; add:] \
Ind. St. 1905, p. 584, § 455 (re-enacts Rev. St. 1897, c. 96, § 60).
[Note 4 ; add :]
1904, State v. Pggleston, 45 Or. 346, 77 Pac. 738, sembk.
[Note 6; add:]
Can. St. 1913, 3-4 Geo. V, c. 13, § 14 (inserting a new § 242 B in Criminal Code 1906;
failure tO' support family; "that a man has cohabited with a woman or has in any way
recognized her as being his wife " shall be evidence of lawful marriage, and "that a man has
in any way recognized children as being his children" shall be evidence of their being his
legitimate children).
493
§ 2085 REQUIRED KINDS OF WITNESSES
[Note 6 — continued]
Ark. St. 1909, c. 52, p. 134, Mar. 5, § 2 (wife-abandonment, etc.; "no other evidence"
than in evil cases, needed to prove marriage or paternity).
Ccd.: 1909, People v. Le Doux, 155 Cal. 535, 102 Pac. 617 (marricide; a bigamous mar-
riage with L. being alleged as the motive, the rule for bigamy was correctly not applied to
the proof of marriage with the deceased, because the defendant's belief alone was material
to the motive).
B. C. St. 1906, Mar. 23, § 2, c. 1131, U. S. Stat. L. vol. 34, p. 87 (offence of failing to sup-
port one's family; "no other evidence Shall be required" to prove marriage or parentage
than in civil actions).
Haw. St. 1913, No. 83, p. 103, Apr. 15, § 6 (desertion of family by husband; "no other
or greater evidence" required to prove the marriage or paternity than in civil action).
1906, State v. Rocker, 130 la. 239, 106 N. W. 646 (murder ; marriage of one co-defendant
to the deceased).
Kan. St. 1911, c. 163, p. 247, Mar. 13, § 6 (family-desertion by husband; like Haw.
St. 1913, No. 83).
Nev. St. 1913, c. 272, p. 445 (cited more fully ante, § 488).
Tex. St. 1907, c. 62, p. 133, § 2 (family-desertion; for proving marriage or parentage "no
other evidence shall be required" than in civil actions; wife shall be competent to all
facts, including marriage and parentage).
Wash. St. 1907, c. 103, p. 199, § 3 (family-desertion ; no other evidence required to prove
marriage or parentage than "to prove such facts in a civil action").
Wis. St. 1911, c. 676, p. 731 (family-desertion; "no other or greater evidence shall be
required to prove the marriage of such husband or wife, or that the defendant is the father
or mother of such child or children whether legitimate or illegitimate, than is or shall be
required to prove such facts in a civil action").
[Note 7; add:]
1903, State v. Tillinghast, 25 R. I. 391, 66 Atl. 181 (crime of non-support; rule assumed to
apply to all criminal cases, without citing authority, and in an ill-considered opinion).
Note also the following : 1906, Green v. State, 125 Ga. 742, 64 S. E. 724 ("a witness can-
not be impeached by showing by parol evidence that he has committed bigamy" ; no author-
ity is cited for this confused statement).
[Note 9, par. 1 ; add:]
So also for cinl eases in general :
1913, Farmer v. Towers, 106 Ark. 123, 152 S. W. 993 (heirship).
§ 2086. Same: Eye- Witness not required when Proof is by Admissions.
[Note 4; add:]
Contra: 1876, R. v. Savage, 13 Cox Cr. 178.
1890, R. V. Ray, 20 Ont. 20fe (bigamy ; defendant's confession of the first marriage, not
sufficient; "We must follow the latest English case, R. v. Savage").
Accord: 1904, McSein v. State, 120 Ga. 175, 47 S. E. 544 ("the defendant's uncorroborated
admissions are sufficient to establish the first marriage").
Not clear: 1911, R. v. Naoura, 24 Ont. L. R. 306 (bigamy; defendant's oral admission
of first marriage ; not clear).
[Note 5; add:]
1912, Johnson v. State, — Tex. Cr. — , 160 S. W. 936 (following Dumas v. State ; but mere-
admissions, without cohabitation or other circumstances, do not suffice).
494
REQUIRED KINDS OF WITNESSES § 2089
[Note 6, par. 1 ; add :]
1907, Williams v. State, 151 Ala. 108, 44 So. 57 (Parker v. State approved and followed).
1905, Murphy v. State, 122 Ga. 149, 50 S. E. 48.
[Note 7; add:] '
Haw. : 1902, Terr. v. Castro, 14 Haw. 131 (adultery).
Utah: 1906, State v. Thompson, 31 Utah 228, 87 P.ac. 709. 1909, State v. Moore, 36 Utah
521, 105 Pac. 293. 1912, State v. Moore, — Utah — , 126 Pac. 322.
[Note 9; add:]
Can. St. 1913, 3—4 Geo. V, c. 13, § 14 (failure to support family ; quoted ante, § 2085, n. 6).
1910, People v. Adams, 162 Mich. 371, 127 N. W. 354 (seduction by a married man) ; and
the other statutes concerning family-desertion, quoted ante, § 2085, n. 6.
[Note 11, par. 1; add:]
Accord: 1902, State v. Miller, 3 Pennew. Del. 518, 52 Atl. 262 (information for failure to
support children).
1909, Walker v.. Walker, 151 N. C. 164, 65 S. E. 923 (inheritance depending on legitimacy ;
the mother's declarations as to non-marriage received).
Contra: 1911, Whigby v. Burnham, 135 Ga. 584, 69 S. E. 1114 (action by son against
widow, for land inherited ; the deceased father's admission that he was already married
to another woman, not received for the plaintiff ; the grounds of the ruling are inexplicable).
[Note 12; add, under Contra:]
1905, Bowman v. Little, 101 Md. 273, 61 Atl. 223, 657, 1084 (to prove identity ; the opinion
is full of loose law).
§ 2088. Same : Celebrant's Certificate, etc., not Preferred.
[Note 4 ; add :]
1906, Richardson v. State, 103 Md. 112, 63 Atl. 317.
[Note 5; add:]
1913, State v. Nieburg, 86 Vt. 392, 85 Atl. 769.
1905, State v. Nelson, 39 Wash. 221, 81 Pac. 721.
[Note 6; add:]
1903, State v. TilUnghast, 25 R. I. 391, 56 Atl. 181, semhle (non-support).
[Note 7; add:]
1906, Hill V. Pomelear, 72 N. J. L. 528, 63 Atl. 269.
[Note 9, par. 1; add:]
1906, Southern R. Co. v. Brown, 126 Ga. 1, 54 S. E. 911 (death by wrongful act). 1907,
Sellers v. Page, 127 Ga. 633, 56 S. E. 1011 (foreclosure).
1906, Smith v. Fuller, — la. — , 108 N. W. 765 (dower).
1905, Hardin v. Hardin, — Ky. — , 87 S. W. 284 (negro marriage).
1907, Massuco v. Tomasi, 80 Vt. 186, 67 Atl. 551 (breach of promise to marry).
§ 2089. Owner's Testimony to Non-Consent, in Larceny.
[Note 5; add:]
1905, Jones v. People, 33 Colo. 161, 79 Pac. 1013 (rule apparently approved, citing only
Wisconsin cases ; but here it was proved impossible to find the owner).
495
§2089 REQUIRED KINDS OF WITNESSES
[Note 5 — continued]
1910, Johns V. State, 88 Nebr. 145, 129 N. W. 247 (non-consent must clearly appear from
the owner's evidence).
[Note 6; add:]
1893, People ». Davis, 97 Cal. 194,31 Pac. 1109 (larceny of a pocket-book ; rule not applied).
1913, State v. Patchen, 36 Nev. 510, 137 Pac. 406 (burglary).
1906, Hurst v. Terr., 16 Okl. 600, 86 Pac. 280 (larceny of cattle; rule repudiated).
1908, State v. Faulk, 22 S. D. 183, 116 N. W. 72 (non-consent need not be proved by the
owner).
§ 2094. Completeness of Verbal Utterance ; General Principle.
[Note 4:: add:]
As to the giving of an instruction on this point, there is much useless learning :
1903, People v. Wardrip, 141 Cal. 233, 74 Pac. 744 (under C. C. P. § 2061). 1904, People
V. Buckley, 143 id. 375, 77 Pac. 169. 1904, People v. Moran, 144 id. 48, 77 Pac. 777. 1904,
People V. Ruiz, 144 id. 251, 77 Pac. 907.
1905, Castner v. Chicago, B. & Q. R. Co., 126 la. 581, 102 N. W. 499.
1905, Rosenwald v. Middlebrook, 188 Mo. 58, 86 S. W. 200.
1904, Thompson v. Purdy, 45 Or. 197, 77 Pac. 113, 83 Pac. 139.
1906, State v. Hutchings, 30 Utah 319, 84 Pac. 893.
1905, Grotjan v. Rice, 124 Wis. 253, 102 N. W. 551.
[Text, p. 2823 ; after the quotations in par. (1), add the following :]
1909, "Trial of Professor Foster for Heresy" (Chicago Record-Herald, June 8, 1909).
Dr. Wm. Matthews, a zealous religionist, believing that Professor Foster, of the Theological
Faculty of the University of Chicago, had published heretical doctrine, advanced charges of
heresy before an ecclesiastical Conference held in Chicago. The critic in his address quoted
many passages from the accused's writings, and commented on them ; and the following
incident here occurred : Dr. Matthews, after quoting Professor Foster as stating in his
book that "he who calls himself a Bible believer is a knave," declared with great earnest-
ness : "If that be so, thank God I am one."
"Does Professor Foster say that?" interrupted Professor Parker.
"Yes, sir," declared Dr. Matthews.
"On what page?" demanded Professor Parker.
"Page 282," was the reply.
"How do yon spell the word 'knave'?" was the next question.
"K-n-arv-e," spelled Dr. Matthews. /
"If you will turn to the passage you refer to on page 282 of Professor Foster's book," re-
turned Professor Parker, pointing to it in an open copy of the book which he held in his
hand, " you will find that it reads : 'He who calls himself a Bible believer is a naive,' meaning
a simple, untutored person, not a scoundrel, as one would be led to believe from yotir inter-
pretation."
Dr. Matthews thanked the professor for his correction, but was visibly embarrassed by
his error.
§ 2097. Verbal Precision ; General Principle, etc.
[Note 1 ; add:]
' 1904, McKee v. Higbee, 180 Mo. 263, 79 S. W. 407 (conversations and terms of a lost let-
ter, involving a contract to bequeath, held not sufficiently proved).
1905, Busch V. Robinson, 46 Or. 539, 81 Pac. 237, semble.
1910, People v. Giro, 197 N. Y. 152, 90 N. E. 432.
496
COMPLETENESS OF UTTERANCE § 2100
[Note 2; add:]
1911, Godinho's Case, 7 Cr. App. 12 (not decided ; R. v. Sejcton, as cited in Roscoe, " Crim.
Evidence," 13th ed., 39, doubted).
1904, State v. Biinte, 4 Del. 551, 58 Atl. 258 (the questions, to which the confession made
answer, need not be included).
§ 2098. Same : Application to Testimony at a Former Trial.
[Note 4, par. 1 ; add :]
1905, Petty v. State, 76 Ark. 615, 89 S. W. 465 (substance).
1905, Arnold's Estate, 147 Cal. 583, 82 Pac. 252 (usually the questions, and not only the
answers, must be read).
1912, Hope V. Valente, 86 Conn. 301, 85 Atl. 541 (a party's admission contained in his for-
mer testimony may be read against him without putting in the remainder).
1904, State v. Harmon, 70 Kan. 476, 78 Pac. 805 (substance suffices ; preceding cases not
cited, though cases from seven other jurisdictions are cited) ; but a stricter rule is laid down
in Kan. St. 1905, c. 494, § 1, making a court stenographer's transcript of "all the evidence
of any witness," admissible ; cited more fully ante, § 1669.
1906, State v. Herlihy, 102 Me. 310, 66 Atl. 643 ("it is sufficient to prove the substance of
the whole testimony").
Compare also the cases cited ante, § 1045, n. 3 (witness' self-contradicticjis).
[Note 4, par. 3 ; add :]
1908, McGivern v. Steele, 197 Mass. 164, 83 N. E. 405. 1910, Jaquith v. Morrill, 204 Mass.
181, 90 N. E. 556 (Costigan v. Limt approved and eppUed). 1911, Com. v. Shooshanian,
210 Mass. 123, 96 N. E. 70 (the witness may state such part as he remembers, if the
needed remainder is stated by others).
[Note 7; after Southern L. & T. Co. v. Benbow, N. C, add:]
Compare the second ruling in this case, cited post, § 2099, n. 1.
§ 2099. Entirety of Parts : General Principle, etc.
[Note 1, par. 1; add:
1906, State v. Freddy, 117 La. 121, 41 So. 436 (conversation only partly heard, admitted).
[iVofel,par.2,1.4; add:]
1849, O'Brien v. Cheney, 5 Cash. 148, 152 (admission as to a bond ; "the admission in full "
must be taken ; here, however, a judicial admission was concerned).
1904, Southern L. & T. Co. v. Benbow, 135 N. C. 303, 47 S. E. 435 (memorandum of ad-
missions in a conversation, not containing the exact words nor the entire substance, but
only the effect of isolated parts, excluded ; the opinion confuses the principles involved,
and while citing inappropriate cases on former testimony, fails to cite either the N. C. cases
mpra, or that cited ante, § 2097, n. 1, or even the prior ruling on the similar point at the
former trial of the same case cited ante, § 2098, n. 7).
§ 2100. Same : Application to Accused's Confessions.
[Note I, par. 1; add:]
1910, People v. Luis, 158 Cal. 285, 110 Pac. 580 (admitted, where he heard all and remem-
bers the substance).
1904, Green v. Com., — Ky. — , 83 S. W. 638 (here the substance is required).
1904, State v. Gianfala, 113 La. 463, 37 So. 30 ("in the main, all that was said" suffices).
1906, State v. Lu Sing, 34 Mont. 31, 85 Pac. 521 (confession of a Chinese, speaking broken
497
§2100 COMPLETENESS OF UTTERANCE
[Note 1 — continued]
English, and understood in part only, admitted; the above rule confirmed). 1909, State
V. Berberick, 38 Mont. 423, 100 Pac. 209 (substance of a confession, admitted).
1911, State V. Averill, 85 Vt. 115, 81 Atl. 461. i
[Note 2; aM:]
1910, People v. Giro, 197 N. Y. 152, 90 N. E. 432.
[Note 3, par. 1 ; add :]
1910, Stone's Case, 6 Cr. App. 89, 96. 1911, Gray's Case, 6 Cr. App. 242.
1904, Risdon v. Yates, 145 Cal. 210, 78 Pac. 641 (the defendant's plea of guilty before a
justice having been introduced, the Court allowed the entire statement made at the time
by the defendant to be used in explanation).
1912, People ». Bowen, 170 Mich. 129, 135 N. W. 824 (the remainder may be introduced,
even though it involved disclosing privileged communications with a wife).
1904, State v. Knowles, 185 Mo. 141, 83 S. W. 1083. 1905, State v. Merkel, 189 Mo. 315,
87 S. W. 1186. 1906, State v. Myers, 198 Mo. 225, 94 S. W. 242 (for the prosecution).
1906, Clay v. State, 15 Wyo. 42, 86 Pac. 17.
[Note 5, par. 1, col. 2, 1. 5; add:]
Canada : 1905, R. v. Martin, 9 Ont. L. R. 218 (the whole is read, but the judge instructs
the jury "not to pay the slightest attention to it except so far as it goes to affect such person"
confessing).
United States: 1904, Howson v. State, 73 Ark. 146, 83 S. W. 933.
1904, State v. Brmte, 4 Del. 551, 68«Atl. 258.
1914, People v. Hotz, 261 III. 239, 103 N. E. 1007.
1908, Poison V. Com., — Ky. — , 108 S. W. 844.
1913, Com. V. Borasky, 214 Mass. 313, 101 N. E. 377.
1911, Ford V. State, 5 Okl. Cr. 240, 114 Pac. 273.
1908, Gibson v. State, 53 Tex. Cr. App. 349, 110 S. W. 41.
1912, State v. Romeo, — Utah — , 128 Pac. 530.
1905, State v. Mann, 39 Wash. 144, 81 Pac. 561. 1912, State v. Beebe, 66 Wash. 463, 120
Pac. 122 (contra distinguishing State v. Mann in some way not entirely clear).
[Note 5, par. 1, 1. 6 from the end ; add:]
1907, McCann v. People, 226 111. 562, 80 N. E. 1061 (here two judges dissented because of
this principle).
[Text, p. 2841, at the end of the section, add, as a new paragraph 4 :]
(4) Of course, the prosecution may desire here to invoke the rule (post,
§ 2115) allowing the whole to be put in. This is usually the case where the
confession contains a mention of another crime committed by the accused.
On the usual principles (ante, §§ 194, 300-367), this additional crime would
ordinarily not be provable for its own sake ; yet under the present principle
and that of § 2115, post, the accused's allusion to it in his confession may and
must be listened to if it is a part of the one entire statement confessing the
crime charged at bar.^
* There is usually an unnecessary scrupulosity on this point :
1896, Gore v. People, 162 111. 259, 266, 44 N. E. 500 (murder).
1905, Wistrand v. People, 218 111. 323, 75 N. E. 891 (rape; the whole may be read, under
proper instructions).
498
- COMPLETENESS OF UTTERANCE § 2104
[Text, p. 2841 — continued]
1854, Lord v. Moore, 37 Me. 208, 217 (civil action for arson; in the defendant's admissions,
a part which mentioned another similar act of his was received as being inseparable from,
the whole).
1904, People v. Loomis, 178 N. Y. 400, 70 N. E. 919 (a confession of another crime, made
at the same time as the confession of the crime charged, is not admissible, unless the latter
"necessarily relates to another crime" or "is so essentially interwoven with every other
part" of the statement that the whole must be listened to). 1908, People v. Rogers, 192
N. Y. 331, 85 N. E. 135 (murder; following People v. Loomis, supra). 1908, People v.
Cahill, 193 N. Y. 232, 86 N. E. 38 (electoral perjury; three judges dissenting).
1904, State v. Knapp, 70 Oh. 380, 71 N. E. 705 (wife-murder ; defence, insanity ; a written
confession, recounting also the killing of four other women, held properly admitted, under
cautionary instructions).
1907, Barnett v. State, 50 Tex. Cr. 538, 99 S. W. 556 (burglary).
1906, State v. Dalton, 43 Wash. 278, 86 Pac. 590 (murder at a burglary ; a confession men-
tioning former crimes, admitted).
§ 2102. Document Produced in Court, etc.
[Note 1, par. 1; add:]
1909, Augusta N. S. Co. v. Forlaw, 133 Ga. 138, 65 S. E. 370 (the whole of a letter need
not be offered).
1904, Fowles v. Joslyn, 135 Mich. 333, 97 N. W. 790 (defendant's book-entry admitting
payment, received against him, without offering the entire book).
§ 2103. Same : Depositions and Former Testimony.
[Note 3, par. 1 ; add:]
Accord: 1908, Farmers' Merchants' Bank v. Wood, 143 la. 635, 118 N. W. 282 (whether
the deposition of an officer of an opponent corporation must all be offered, not decided).
1904, Gussner v. Hawks, 13 N. D. 453, 101 N. W. 898 (First N. Bank v. M. & N. E. Co.
approved ; but here the cross-examiner's offer of three answers of the cross-examination
only was held insufficient).
1909, Crotty «. Chicago Great Western R. Co., 8th C. C. A., 169 Fed. 593 (not all need be
read, "if what is read does not consist of mere fragmentary excerpts, a correct appreciation of
which depends upon the context").
Contra: 1876, Fountain's Adm'r v. Ware, 56 Ala. 558, semble.
1913, Walter v. Sperry, 86 Com. 474, 85 Atl. 739 semble.
1913, Boney v. Boney, 161 N. C. 614, 77 S. E. 784 (cannot put in the cross-examination
alone).
Compare the cases cited post, § 2115, n. 3, and ante, § 1045, n. 3.
[Note 5; add:]
1908, Leifheit v. Neylon, 139 la. 32, 117 N. W. 4 (testimony of a party-opponent at a former
trial, here used as containing admissions ; the offerer need read only such parts as he sees
fit).
§ 2104. Same : Separate Writings referred to, etc.
[Note 1, add:]
1906, Merchant's L. & T. Co. v. Egan, 222 111. 494, 78 N. E. 800 (memorandum referred
to in a conversation ; the trial Court's discretion controls).
499
§2105 COMPLETENESS OF UTTERANCE
§ 2105. Doctunent Lost or Destroyed; (1) Deeds, etc.
[Note 1, par. 1, line 1 ; add:]
The following cases include those which merely require a stronger degree of proof of the
contents than mere preponderance of evidence, under the principle of § 2498, post (see par.
d, at the end of note 5, in the present section ; Courts do not always distinguish the two
principles).
1905, Carpenter v. Jones, 76 Ark. 163, 88 S. W. 871 (lost deed; instructions passed Upon;
foregoing cases not cited).
1909, Robinson v. Singerly P. & P. Co., 110 Md. 382, 72 Atl. 828 (lost agreement, sufficiently
shown).
1908, Rogers v. Clark Iron Co., 104 Minn. 198, 116 N. W. 739 (lost land-patent; Perry v.
Burton, 111., approved).
1904, Capell v. Fagan, 29 Mont. 507, 77 Pac. 55 (deed's terms not sufficiently shown).
1913, Borstelman v. Brohan, 81 N. J. Eq. 401, 87 Atl. 145 (proof should be "clear and co-
gent").
1906, Ivey v. Bessemer C. C. Mills, 143 N. C. 189, 55 S. E. 613 (a "substantial copy of the
greater part of a letter," excluded, on the facts). 1911, State v. Corpening, 157 N. C. 621,
73 S. E. 214 (part of a letter of defendant being destroyed, the remainder containing ad-
missions was received ; but the opinion does not show appreciation of the question involved).
1904, Simpson v. Weise, 34 Wash. 360, 75 Pac. 973 (a memorandum of a contract detained
by the opponent may suffice). 1909, Scurry v. Seattle, 56 Wash. 1, 104 Pac. 1129 (deed
with conditions, held not sufficiently evidenced).
[Note 1, par. 5, p. 2848, under Recital of a Seal; add:]
1904, Wilson v. Braden, 56 W. Va. 372, 49 S. E. 409.
[Note 5, at the end, add :]
(d) The degree of persuasion — whether beyond a reasonable doubt, or the like — required
for proof of a lost deed is usually greater than that required ordinarily in civil cases {post,'
§ 2498) ; see the remarks in par. (o) of note I to § 2106, post.
§ 2106. Same : (2) WiUs.
[Note 1, par. 1; add:]
1909, Patterson's Estate, 155 Cal. 426, 102 Pac. 941 (a part distinctly proved can be
given effect).
1913, Cassem v. Prindle, 258 111. 11, 101 N. E. 241 (" substance of the will" suffices).
1907, Bradshaw v. Butler, 125 Ky. 162, 100 S. W. 837 (Steele ». Price followed).
1910, In re Lord's Will, 106 Me. 51, 75 Atl. 286; ("clear, strong, satisfactory, and con-
vincing" ; why not add, "positive, plain, pronounced, and persuasive" ?)
1913, Tinnan v. Fitzpatrick, 120 Md. 342, 87 Atl. 802 (purporting, executor the sole benefi-
ciary with holding a will for eight years until all attesting witnesses were dead, and then
coming forward with a copy, the original having been destroyed in a great conflagration ;
proof held not sufficient).
1906, Michell v. Low, 213 Pa. 526, 63 Atl. 246.
§ 2109. Public Records ; Application to Sundry Public Records.
[Note 1 ; add, at the end ;]
Compare also, on all the kinds of documents in this section,' the cases cited ante, § 1678
(certificate of effect of a record).
500
COMPLETENESS OF UTTERANCE §2115
§ 2110. Same : Application to Judicial Records.
[Note 2; add:]
1906, Patterson v. Drake, 126 Ga. 478, 55 S. E. 175.
1905, Chicago & S. E. R. Co. v. Grantham, 165 Ind. 279, 75 N. E. 265 (eminent domain;
transcript held sufficient).
1903, Tompkins v. Com., 117 Ky. 138, 77 S. W. 712 (competency of a divorced wife ; record
of divorce not required).
1911, Mundy v. Jacques, 116 Md. 11, 81 Atl. 289 (nul tiel record; complete copy of IlUnois
judgment-record required ; distinguishing Code Art. 35, supra, n. 1, as applying only to
domestic judgments).
1912, King V. Cox, 126 Tenn. 653, 151 S. W. 58 (damages on dissolution of injunction;
part of record, held not sufficient on the facts ; cases collected).
Compare the citations ante § 1678 (certificate of effect of a record).
[Note 3; add:]
1909, Pineland Club v. Robert, 4th C. C. A., 170 Fed. 341 (a record of a will must show that
there was a decree admitting it to probate, on the principle of § 1658, ante; hence a re-record
of a certified copy of a will from the probate court, no decree of probate appearing therein,
was held not admissible under S. C. St. 1866, Dec. 20, admitting records of certified copies
of lost originals). '
[Page 2857 ; par. (5), at the end ; add a new note 4 :]
Similar questions arise for an administrator's deed: 1908, Felix v. Caldwell, 235111. 159,
85 N. E. 228 (administrator's deed without decree, the records of court being destroyed,
admitted, in connection with Rev. St. 1872, c. 30, § 12).
§ 2113. General Principle ; the Whole, etc., May be put in.
[Text, page 2860, line 9 from above ; add a note la :]
Approved in People ii. Schlessel, 196 N. Y. 476, 90 N. E. 44 (1909).
[Note 3; add:]
The propriety of the distinction taken in the Queen's Case has been well defended by Spear,
J., in Lombard v. Chaplin, 98 Me. 309, 56 Atl. 903 (1903).
[Note 6; add:]
Accord: 1841, Storer v. Gowen, 18 Me. 174 ("Both are equally evidence to the jury").
Contra: 1894, Carter v. Carter, 152 111. 434, 449, 28 N. E. 948 (letters referred to in a con-
versation). 1906, Merchant's L. & T. Co. v. Egan, 222 111. 494, 78 N, E. 800.
§ 2115. Principle's Application; (1) Oral Admissions, etc.
[Note 1, par. 1 ; add:]
1905, Braham v. State, 143 Ala. 28, 38 So. 919 (all said upon the same subject).
1904, Risdon v. Yates, 145 Cal. 210, 78 Pac. 641 (general principle stated).
1909, Thomas v. Young, 81 Conn. 702, 71 Atl. 1100 (not all that is said on any subject at a
single interview is admissible).
1904, Brown v. State, 119 Ga. 572, 46 S. E. 833 (only the explanatory parts).
1904, Chicago City R. Co. v. Bundy, 210 III. 39, 71 N. E. 28 (remainder of a conversation
forming part of a negotiation of compromise, admitted). 1913, Foster v. Shepherd, 258
111. 164, 101 N. E. 411 (remainder of defendant's conversation with several persons, ad-
mitted).
1912, Tyrrel v. State, 177 Ind. 14, 97 N. E. 14 (former testimony; after impeachment
by parts, then only so much as " explains, modifies, or is necessary to enable the jury to
understand the statements introduced to impeach," is admissible in rebuttal).
501
§2115 COMPLETENESS OF UTTERANCE
[Note 1 — continued]
1904, Pettis V. Green Riv. A. Co., — la. — , 99 N. W. 235 (Code rule applied).
1841, Storer v. Gowen, 18 Me. 174 (party's oral admissions; the whole "must be taken
together").
1903, Lombard v. Chaplin, 98 Me. 309, 56 Atl. 903 (party's letter; the whole admitted).
1904, Flowers v. State, 85 Miss. 591, 37 So. 814 (statement of the deceased).
1911, State V. McDonough, 232 Mo. 219, 134 S. W. 545 (remainder of a conversation with
a witness on other topics, excluded). 1911, State v. Lovell, 235 Mo. 343, 138 S. W. 523.
1911, Gibbons v. Terr., 5 Okl. Cr. 212, 115 Pac. 129.
1909, Mahon v. Rankin, 54 Or. 328, 102 Pac. 608 (only the qualifying parts ; the opinion
illustrates the possibilities of perverse technicalism above-mentioned in § 2113).
1910, State v. West, 24 S. D. 530, 124 N. W. 751 (accused's admissions).
1905, State v. Bean, 77 Vt. 384, 60 Atl. 807 ("all that he said upon the subject at the same
time must be received").
1906, Smith v. Milwaukee E. R. & L. Co., 127 Wis. 253, 106 N. W. 829 (whole of a conversa-
tion affecting contributory negligence).
Compare the citations ante, § 1045, n. 1 (witness' self-contradictions).
[Note 2; add:]
Compare also the citations ante, § 2100.
[Note 3; add:]
1905, Miller v. People, 216 111. 309, 74 N. E. 743 (former testimony used as admissions;
the remainder may be offered "which tended to explain, qualify, correct, or in any manner
throw light on the matters touched upon by the questions and answers which were proven").
1910, Grebenstein v. Sone & Webster Eng. Co., 205 Mass. 431, 91 N. E. 411 (the whole
of a witness' former statement, held not improperly read, in the trial Court's discretion).
1904, Culver v. South H. & E. R. Co., 126-Mich. 443, 101 N. W. 663 (whole of former testi-
mony, inadmissible).
1857, State v. Phillips, 24 Mo. 475, 485 (deposition). 1875, Prewitt v. Martin, 59 Mo. 325,
334 (deposition). 1906, State- ». Myers, 198 Mo. 225, 94 S. W. 242 (foregoing cases ap-
proved).
1904, Hanlon v. Ehrich, 178 N. Y. 474, 71 N. E. 12 (there is no "hard and fast rule that will
fit every case aUke" ; "in no event, however, should the writing, or any part thereof, be
read until it has been marked in evidence" ; here a general objection, not specifying the
parts objected to as not strictly contradictory, was held not sufficient). 1904, Taft v.
Little, 178 N. Y. 127, 70 N. E. 211 (other parts of the opponent's former testimony, al-
lowed to be read, so far as explanatory).
1904, Flohr v. Terr., 14 Okl. 477, 78 Pac. 565.
1907, Corpus V. State, 51 Tex. Cr. 315, 102 S. W. 1152 (so much as is pertinent and ex-
planatory of a contradictory statement offered in impeachment may be used ; otherwise,
the whole; here applied to former testimony).
Compare also the cases cited ante, § 1045, n. 3.
Such offers, however, may also involve the distinct question whether, in showing the
Test of the utterances, the magistrate's report of testimony may be contradicted or added
to {ante, § 1349).
§2116. Same: (2) Sundry Writings.
[Note 1 ; add :]
1905, McBrayer v. Walker, 122 Ga. 245, 50 S. E. 95 (a deed offered by a grantee's adminis-
trator ; the grantor allowed to use, on this principle, the grantee's indorsement on the deed
showing a usurious mortgage; properly, however, the principles governing were those of
§ 2132, post, and § 1082, ante, and not the present one at all).
502
COMPLETENESS OF UTTERANCE §2120
§ 2118. Same: (4) Account-Books.
[Note 1 ; add, under Accord:]
1907, PagcB. Hazelton, 74 N. H. 252, 66 Atl. 1049 (other items in an account-book, admitted).
1904 Simpson v. First Nat'l Bank, 129 Fed. 2'57, 264, C. C. A. (banking account).
[Note 1 ; add, at the end :] .
Where an entry in a book of entries is offered under the principle of § 1551, ante (regular
entries), the jury may examine the whole of the book in order to determine /roro its appear-
ance whether it is what it pmports to be : 1904, Hauser v. People, 210 111. 253, 71 N. E.
416 (hotel-register).
§ 2119. Separate Utterances excluded; (1) Conversations, etc.
[Note 1, p r. 1, 1. 5; add:]
1912, Norton v. Clark, 253 111. 557, 97 N. E. 1079 (admitting the statements made by the
other conversant when useful for explaining the sense of the statements of the other con-
versant abeady admitted).
1904, State v. Leuhrsman, 123 la. 476, 99 N. W. 140 (prior statement, excluded).
1906, State v. Thompson, 116 La. 829, 41 So. 107 (accused).
1906, State v. KapeUno, 20 S. D. 591, 108 N. W. 335 (assault with intent; conversations
between other persons, at a prior time, the defendant and the injured person being present,
excluded).
[Note 2; add:]
1914, Clark v. U. S., 8th C. C. A., 211 Fed. 916 ("The question then presents itself, whether
when an indictment charges that a certain book is obscene, the passages which the prose-
cutor claims to be obscene may be introduced in evidence and submitted to the jury, and
the remaining portion of the book excluded?" The question is of course answered. No.
The odd thing about it is that neither counsel nor judges, so far as the opinion or the printed
briefs show, had an inkling that a great principle was involved over which our forebears
in the law had contended in notable political and historic struggles at different times going
back three centuries. It is a discouraging hint of the ignorance and indifference of our
intelligent bench and bar to the importance of historical knowledge and professional biog-
raphy that a case involving this principle could reach and pass through the appellate court
of the United States without any of the participants discovering that the principle in-
volved had' been made immortal in our legal history by the names of Sidney and Erskine).
§ 2120. Same : (2) Utterances incorporated by Reference, etc.
[Note 2, par. 1 ; add:]
1906, Proctor v. Cable Co., 145 Mich. 503, 108 N. W. 992 (salary contract ; series of letters,
admitted).
1904, Gosnell v. Webster, 70 Nebr. 705, 97 N. W. 1060 (rest of a correspondence, admitted).
1908, Sears v. Howe, 80 Conn. 414, 68 Atl. 983 (letters referred to in replies thereto, held
admissible as a part of the replies).
1909, People v. Schlessel, 196 N. Y. 476, 90 N. E. 44 (the witness' mere avowal of ignorance
of a document's contents, when asked on cross-examination, is not a reference sufficient to
admit the document in rebuttal).
[Noted; add:]
Accord: 1913, Muh-oy v. Jacobson, 24 N. D. 354, 139 N. W. 697 (not clear).
Contra: 1905, Hoggson & P. Mfg. Co. v. Sears, 77 Conn. 587, 60 Atl. 133 (plaintiff's reply-
letter admitted for him, on the facts).
503
§2120 COMPLETENESS OF UTTERANCE
[Note 3 — continued]
1904, Robertson v. Vasey, 125 la. 526, 101 N. W. 271.
1909, Crawford v. U. S., 212 U. S. 183, 29 Sup. 260 (an accused having surreptitiously taken
away certain correspondence apparently inculpating, the custodian wrote him charging
him with the act ; this letter being admitted, the answer was held also admissible ; no au-
thority is cited ; but the ruling rests properly on the principle of § 281, ante). 1909, Per-
rin V. U. S., 9° C. C. A., 169 Fed. 17 (contracts by the defendant made on Oct. 31, 1903,
Nov. 20, 1903, and Feb. 4, 1904, forwarded by the defendant in a letter of Sept. 14, 1905 ;
the contract of Oct. 31, 1903, being offered by the prosecution as an admission, the defendant
was held entitled to introduce the other contracts; Gilbert, J., diss.).
§ 2121. Chancery Answer: (1) Used at Law as an Evidential Admission.
[Note 1, par. 1 ; add:]
Contra: 1909, Colby v. Reams, 109 W. Va. 308, 63 S. E. 1009 (citing merely a treatise on
the general principle of § 2113, ante, and apparently quite unaware of the specific rule here
applicable).
§ 2122. Chancery Answer : (2) Used in Chancery as a Pleading, etc.
[Note 5; add:]
1904, Stewart v. N. C. R. Co., 136 N. C. 385, 48 S. E. 793 ; Hedrick v. Southern R. Co., ib.
510, 48 S. E. 830.
1905, Reager's Adm'r v. Chappelear, 104 Va. 14, 51 S. E. 170 (administrator's answer).
§ 2123. Same : (3) Anomalous New York Rule.
[Note 13, par. 1 ; add, under Accord :]
Fla.: 1906, Mayo e. Hughes, 51 Fla. 495, 40 So. 499 (failure of consideration): 1906,
Southern Lumber & S. Co. v. Verdier, 51 Fla. 570, 40 So. 676 (creditor's bill to set aside a
voluntary conveyance ; an answer upon facts "inseparably connected ... is responsive
to the bill as well when it discharges as when it charges the defendant'').
[Note 16; add:]
1905, Ocala F. 85 M. W. «. Lester, 49 Fla. 347, 38 So. 56.
§ 2124. Same : (4) Party's Answer to Statutory Interrogatories.
[Note 2, par. 1 ; add:]
1899, Bank v. Leland, 122 Ala. 289, 25 So. 195 (a defendant's answers not responsive may
be stricken out; reverting to the original rule). 1904, Garrison 11. Glass, 139 Ala. 512, 36
So. 725 (following Bank v. Leland). 1909, Sullivan Timber Co. v. Louisville & N. R. Co.,
163 Ala. 125, 50 So. 941 (the foregoing two cases overruled ; Saltmarsh v. Bower followed).
1911, Birmingham R. L. & P. Co. v. Bush, 175 Ala. 49, 56 So. 731 (the original rule again ;
part may be used without making the whole evidence; foregoing cases not cited). 1913,
Southern R. Co. v. Hayes, — Ala. — , 62 So. 874 (Sullivan T. Co v. L. & N. R. Co. fol-
lowed).
[Note 3; add:]
Man. St.. 1906, 5 & 6 Edw. VII, c. 17, § 1 (amends Rev. St. 1902, c. 40, by adding Rule
407 B, of which par. (10) provides as in Eng. Rules of Court, Ord. XXXI, rule 24, supra).
Newf. St. 1904, c. 3, Rules of Court 28, par. 27 (like Eng. Ord. XXXI, Rule 24).
Yukm Consol. Ord. 1902, c. 17, Ord. XXI, R. 223 (like Ont. Rule 461, par. 1).
504
AUTHENTICATION OF DOCUMENTS §2132
[Note 3 — continued]
N. C. : 1897, Gossler v. Wood, 120 N. C. 69, 27 S. E. 33 (part of an answer admitting the
first five allegations of a complaint, admitted, without reading the remainder setting up a
counterclaim).
§ 2125. Inspection of Opponent's Dociunent, etc.
[Note 4, par. 1 ; add :]
1913, Eckels & S. I. M. Co. v. Cornell E. Co., 119 Md. 107, 86 Atl. 38.
1911, Boyle v. Boston Elevated R. Co., 208 Mass. 41, 94 N. E. 247 (rule properly held not
applicable to admit a document which though called for and produced was not otherwise
admissible for the calling party ; whether the rule itself should be regarded as now valid,
not decided).
§ 2130. General Principle of Authentication, etc.
[Note 1; add:]
1909, People v. Muhly, 11 Cal. App. 129, 104 Pac. 466 (keys, clothes, etc., held not suffi-
ciently connected with the defendant).
1905, State v. Seery, 129 la. 259, 105 N. W. 511 (weapon).
1904, State v. Aspara, 113 La. 940, 37 So. 883 (pistol). 1905, State v. Gordon, 115 La. 57l',
39 So. 626 (pistol).
1909, Hauger v. U. S., 4th C. C. A., 173 Fed. 54, 60 (coins, in a counterfeiting charge).
[Note 3; add:]
1913, Oregon & Cal. R. Co. v. Grabissich, 9th C. C. A., 206 Fed. 577 (answer filed in a
prior suit).
Compare the authorities cited in § 2134, n. 1, post.
§ 2131. Modes of Authenticating Documents.
[Note 5; add:]
1904, Bauer v. State, 144 Cal. 740, 78 Pac. 280 (testimony by one who had not seen the
actual signing of the document, held sufficient on the facts).
1907, Proctor & Gamble Co. v. Blakeley O. & F. Co., 128 Ga. 606, 57 S. E. 879 (arbitra-
tion contract in the custody of a third party out of the State ; handwriting testimony not
being accessible, and a sworn copy being in evidence, the execution was held sufficiently
evidenced by the parties' prior conduct, etc.).
§ 2132. Authentication not necessary when not in Issue, etc.
[Note 1 ; add :]
1905, State v. Waldrop, 73 S. C. 60, 52 S. E. 793 (murder ; a rent-contract in the deceased's
pocket; "formal proof of the execution" not required).
[Note 2, par. 1; add:]
1904, Dorian ». Westervitch, 140 Ala. 283, 37 So. 382 (deed not acknowledged nor attested
nor recorded, admitted). 1905, Brannan v. Henry, 142 Ala. 698, 39 So. 92.
1905, Leavitt v. Shook, 47 Or. 239, 83 Pac. 391 (bill of sale of a mare, used to show the cir-
cumstances of obtaining possession).
1909, Hassam v. Saffiord, 82 Vt. 444, 74 Atl. 197 (deed defectively sealed and acknowledged,
used as color of title).
505
§ 2132 AUTHENTICATION OF DOCUMENTS
[Note 5; add:]
The following statute seems to belong either here or under § 1211, ante:
S- C. St. 1910, No. 361, p. 695 (one may introduce "any instrument purporting to be the
original or copy of any waybill, receipt, bill of lading, or similar instrument issued by a
common carrier as prima facie evidence that the same is genuine or is a true and correct
copy ; provided the adverse party shall fail upon due notice given to produce the original
instrument").
[Text, par. 2, p. 2894; at the end, add:]
When the opponent /ai7s to object to the admission of the document, this is, of
course, on general principles {ante, § 18) a waiver as to the need of any evidence
authenticating its genuineness ; and this waiver is commonly held to extend
to the fact of authority of an agent purporting to sign the document for a prin-
cipal, but not as to the legal sufficiency of the instrimient for any purpose.*"
*" 1860, Lowe v. Bliss, 24 111. 168 (note not objected to ; its execution held to be admitted,
but not its validity).
1822, Birney v. Haim, 2 Litt. 262, 268 (deed purporting to be by town trustees).
:J880, Bartlett v. O'Donoghue, 72 Mo. 263 (unacknowledged deed not objected to ; exe-
cution held to be admitted, but not its legal effect as a conveyance).
1905, McClung V. McPherson, 47 Or. 73, 82 Pac. 13 (notice of termination of tenancy, not
objected to ; the attorney's authority to sign, held to be admitted, but not the legal suffi-
ciency of the notice).
Compare the doctrine for ancient documents {post, § 2144).
[Note 8; add:]
1910, In re Fine, 198 N. Y. 209, 91 N. E. 587 (recital of a note in a mortgage is not an ad-
mission that a specific note offered is the note so described ; other evidence of genuineness
is needed; People v. Corey approved; this seems over-cautious).
§ 2134. Authentication as involving either Signature or Contents.
[Note 1,1. 2; add:]
1909, Western Union Tel. Co. v. Northcutt, 158 Ala. 539, 48 So. 553, semble (telegram de-
livery sheet).
[Note 1, at the end; add:]
1886, Chamberlain v. Chamberlain, 116 111. 480, 484 (an indorsement of payment on a note
is presumed to have been made by the payee or on his authority, when the note is produced
from his custody of the party entitled under him ; otherwise, when produced by the obligor).
1827, Stocking v. Fairchild, 5 Pick. 181 (action on a mortgage-title ; a condition of mort-
gage, written on the back of the deed, presumed to be "a part of the original contract").
Compare the following : 1881, Bailey v. Danforth, 53 Vt. 504 (promissory note given
by the deceased payee to the plaintiff, and bearing an indorsement of payment of date
before the statute had run; semble, the indorsement presumed to be in the payee's hand
and of the purporting date).
Upon proof of the signature of an agent, no presumption as to his authority arises {post,
§ 2521, par. 6) ; otherwise, for ancient documents (post, § 2144). As tp the effect in this
respect of an admission, see ante, § 2132, par. (2).
§ 2138. Authentication by Age; Thirty Years, etc.
[Note 7; add:]
1906, Bower v. Cohen, 126 Ga. 35, 54 S. E. 918 (map dated 1859, but not shown to exist
till later).
506
AUTHENTICATION OF DOCUMENTS § 2143
§ 2139. Natural Custody.
[Note 3; add:]
1905, Campbell v. Bates, 143 Ala. 338, 39 So. 144 (the proper custody will be presumed, in
favor of the ruling below).
[Note 6; add:]
1904, Ee Butrick, 185 Mass. 107, 69 N. E. 1044 (possession of a grantee's heir, held suffi-
cient).
1911, VVright V. Hull, 83 Oh. 385, 94 N. E. 813 (receipt's custody by the party here held
insufficient, in view of suspicious discrepancies).
1905, McGuire v. Blount, 199 U. S. 142, 26 Sup. 1 (certain probate records of Spanish Florida,
in the custody of the U. S. Surveyor-General, received).
§ 2140. XTnsuspicious Appearance.
[Nate 1; add:]
1905, Campbell v. Bates, 143 Ala. 338, 39 So. 144 (rule applied).
§ 2141. Possession of the Land, for Deeds and Wills.
[Notei; add:]
1913, Lane v. Watts, 41 D. C. App. 139, 156 (requirement not mentioned).
1909, Leverett v. Tift, 6 Ga. App. 90, 64 S. E. 317 (deed of 1843, recently recorded, admitted
without proof of possession).
1890, Havens v. Sea Shore L. Co., 47 N. J. Eq. 365, 379, 20 Atl. 497 (possession not required,
on the facts).
1911, Nicholson v. Eureka L. Co., 156 N. C. 59, 72 S. E. 86 (certificate of survey of 1841,
admitted without evidence of possession).
§ 2143. Old Recorded Deeds and Old Copies.
[Note 2, par. 1 ; add :]
1904, Carter v. Wood, 103 Va. 68, 48 S. E. 553 (a county-court entry of a deed in 1859, and
a copy of the deed made in 1866-72 by one who knew nothing of its genuineness, excluded).
1907, Dickinson ». Smith, 134 Wis. 6, 114 N. W. 133 (an ancient copy of a recorded map,
the copy coming from the register's custody, and generally reputed as correct, admitted).
[Note 4, par. 1 ; add:]
1904, Arbuckle v. Matthews, 73 Ark. 27, 83 S. W. 326 (certified copy of official record, made
in 1885, of a purporting original land-patent certificate of 1860 not entitled to record, ex-
cluded ; preceding case not cited).
1904, Bentley v. McCall, 119 Ga. 530, 46 S. E. 645 (a certified copy of the record, insufiicient
here under § 1651, ante; the record-book itself lost, and the record purporting to be of a
deed of 1846 ; these facts were held insufficient to authenticate).
1907, Ball V. Loughridge, — Ky. — , 100 S. W. 275 (record of 1853 of unlawfully recorded
power of attorney, not admitted ; ''ihis rule has never [ !] been applied to a copy").
1908, McCleery v. Lewis, 104 Me. 33, 70 Atl. 540 (here the record-copy was over 50 years
old, and was regular, but under the Maine rule (ante, § 1225) could not be used because the
offeror was the grantee in the deed ; excluded, but erroneously, on the ground that the orig-
inal was not shown to have been executed ; yet that is precisely the fact which the present
doctrine purports to faciUtate ; moreover, the learned Court seems to have forgot that the
grantee-rule (§ 1226, ante) is aimed merely to account for the original, and that, if thq orig-
inal is duly accounted for, a regular record-copy is admissible in Maine to prove execution,
507
§2143 AUTHENTICATION OF DOCUMENTS
[Note 4 — continued]
on the principle of § 1651 ; the ruling produces an insurmountable impossibility of proof
where none need ever exist, nor was meant to, by any rule of law).
1906, Murphy v. Cady, 145 M^ich. 33, 108 N. W. 493 (bill for accounting for pension moneys ;
exemplified copies of pension vouchers of about 1873, admitted under U. S. Rev. St. § 882,
quoted ante, § 1680, held to admit the originals purporting to be signed by the party charged,
without proof of the signatures on the latter ; it is difficult to see why the exemplified copy
was not sufficient, on the principle of § 1680, atvte, without the aid of the ancient-document
rule).
1905, Lancaster v. Lee, 71 S. C. 280, 51 S. E. 139 (deed of 1864, not legally recorded, and
now lost; the record, sworn to by the transcribing clerk on the stand, was admitted to
prove contents and apparently execution also).
1911, Northrup v. Columbian Lumber Co., 5th C. C. A., 186 Fed. 770, 774 (certified copy
of a deed to Georgia land irregularly recorded in South Carolina in 1868, admitted the orig-
inal being lost).
[Note 5, par. 1; add:]
Ala. St. 1911, No. 191, p. 192, Apr. 4, § 2 (certified copy of defectively executed convey-
ance of State lands, prior to Feb. 12, 1879, and recorded for 20 years in the probate court,
admissible).
Fla. St. 1903, c. 5162, p. 97 (certified copy of a lost or destroyed deed defectively recorded
for twenty years, admissible in proceedings to re-establish). 1907, Campbell v. Skinner,
53 Fla. 632, 43 So. 874 (statute held constitutional).
Tex. St. 1907, c. 165, p. 308 (amending Rev. Civ. St. § 2312 ; an instrument lacking in due
acknowledgment or proof but recorded for 10 years or more, or a certified copy if the orig-
inal is lost or not procurable, is admissible "without the necessity of proving its execu-
tion").
Va. St. 1912, c. 235, p. 524 (deeds etc. recorded before 1865 and made under a statute or
decree providing for conveyance ; if the proceedings under which it was made are "lost
or destroyed or cannot be produced,'' the deed or a certified copy of the record, shall be
evidence of the authority, due compHance, etc.) ; St. 1914, c. 100, p. 186 (repealing the fore-
going).
W. Va. St. 1907, c. 76, p. 291, § 2 (certain judicial deeds recorded for 10 years or more,
presumed to be made on due authority).
§ 2144. Authority to Execute.
[Note 2; add:]
1912, Butterfield v. Miller, C. C. A., 195 Fed. 200, 208 (recital in an ancient deed of a
power of attorney, held not sufficient, when the power is matter of record, " without pro-
ducing the original or a copy or accounting for failure to produce.)
[Note 3; add:]
1908, Koch V. Streuter, 232 111. 594, 83 N. E. 1072 (deed of State public land trustees ; State
title from the United States, not presumed).
[Note 4; add:]
1913, Wilson v. Snow, 228 U. S. 217, 33 Sup. 487 (a will was probated in 1858, but there is
no record of the executrix having qualified ; a deed was made in 1865, by a grantor as the
executrix under a power to this will ; held, that the fact of the grantor's authority to sell
as executrix was sufficiently evidenced by the deed's recital of such authority, and by the
circumstance of possession for 40 years under the deed; the opinion does not carefully
distinguish the hearsay exception for deed-recitals and the rule for authenticating ancient
508
AUTHENTICATION OF DOCUMENTS § 2149
[Note 4 — continued]
deeds ; either of them might sufiSce for the present ease ; but the opinion cites cases from
both, without noting that there are two ; it also ignores the Umitations on the deed-recital
rule, though citing Carver v. Jackson, ante, § 1573, which established them). '
1907, Dickinson v. Smith, 134 Wis. 6, 114 N. W. 133 (plat and survey certificate, more
than 30 years old, held sufficient evidence of necessary authority from the city council).
I
§ 2145. Kinds of Documents covered by the Rule.
[Note 2; add:]
1910, Cole V. Lea, 35 D. C. App. 355 (account-books).
1906, McCreary v. Coggeshall, 74 S. C. 42, 53 S. E. 978 (letter found among the papers of
the addressee).
1905, McGuire v. Blount, 199 U. S. 142, 2|S Sup. 1 (Spanish probate proceedings).
[Note 2 ; add, at the end :]
Of course, the doctrine cannot avail to introduce a document which would not be valid,
even if genuine :
1904, O'Neal v. Tennessee C. D. & R. Co., 140 Ala. 378, 37 So. 275 (deed without
acknowledgment or witnesses, and purporting to be signed by mark; the statute at
that time requiring either attestation or acknowledgment for validity of a deed, the docu-
ment was rejected).
§ 2146. Presumption created ; Statutory Denial of Genuineness.
[Note 2; add:]
1904, Bentley v. McCall, 119 Ga. 530, 46 S. E. 645 (cited ante, § 2143, n. 4). 1907, Chatman
■». Hodnett, 127 Ga. 360, 56 S. E. 439. 1909, Leverett v. Tift, 6 Ga. App. 90, 64 S. E.
317 (explaining McArthur v. Morrison).
§ 2148. Authentication by Contents ; in general.
[Note 2, I 2; add:]
So also the cases cited ante, § 2130, n. 3.
[Note 2, at the end ; add :]
1910, People v. Adams, 162 Mich. 371, 127 N. W. 354 (letters and telegrams of a seducer,
admitted).
1906, International Harv. Co. ■». Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93 (letter
admitted, on the above principle). •
Compare also the cases cited ante, §§ 87, 270, 2024, 2148, 2149.
But the marks of cancellation on a will found in the testator's custody may be presumed
genuine : 1906, Wikman's Estate, 148 Cal. 642, 84 Pac. 212.
§ 2149. Illiterate's Letter ; Typewriting.
[Note 1,1. 5; add:]
1906, Sprinkle v. U. S., C. C. A., 150 Fed. 56, 59 (typewritten letter signed with a
stamp or stencil, held not sufficiently authenticated on the facts ; an fexample of over-strict
ruling).
1906, State v. Freshwater, 30 Utah 442, 85 Pac. 447 (typewritten letters, sufficiently evi-
denced by contents, etc. ; Singleton v. Bremer, supra, approved).
Compare also the cases cited anU, §§ 87, 270, 2024, 2148, 2149.
509
§2149 AUTHENTICATION OF DOCUMENTS
[Text, p. 2918, 1. 5, at end of quotation 1 ; add a new note la :]
(1") Accord: 1909, Whalen v. Gleeson, 81 Conn. 638, 71 Atl. 908 (illiterate's letters by an
amanuensis).
§ 2150. Printed Matter ; (1) Newspapers.
[Note 3, par. 1 ; add :]
Canada : Alta. St. 1913, 2d sess., c. 12, § 15 (newspaper libel ; "the production of a printed
copy of a newspaper" to be evidence of publication).
Sask. St. 1909, c. 16, § 15- (libel ; printed copy of newspaper to be evidence of publication,
of names of proprietor and publisher, and of place of publication).
United States : N. Y. St. 1914, c. 113 (illegal advertisement; "the placing of an advertise-
ment" etc. is evidence that the person named as vender etc. "caused or procured the same to
be so placed" etc.).
§ 2152. Postmark ; Brand.
[Note 1; add:]
1904, Kirkland v. State, 141 Ala. 45, 37 So. 352 (postmark in another State presumed
genuine).
[Note 3 ; add, under Accord :]
1906, Beeman v. Supreme Lodge, 215 Pa. 627, 64 Atl. 792 (postmark, used to show the time
of arrival at a post-office).
[iVofe4, 1. 4; add:]
1904, Kirkland v. State, 141 Ala. 45, 37 So. 352 (postmark in Florida, admitted to show that
the witness was there).
The following rules might equally well be ruled judicially :
Eng. St. 1908, 8 Edw. VII, c. 48, §§ 8, 9 (post-office stamp to be evidence that an addressee
of packet has refused it or is dead or cannot be found ; also that the sum marked due is
due). ^
§ 2153. Reply-Letter received by Mail.
[Note 1, par. 1 ; add:]
1904, Burton v. State, 141 Ala. 32, 37 So. 435 (letter not shown to have been received in
reply, excluded).
1910, Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394.
1905, Dorr Cattle Co. ». Chicago & G. W. R. Co., 128 la. 359, 103 N. W. 1003 (notice of
quarantined cattle, received by mail, not presumed genuine).
1907, American Bonding Co. v. Ensey, 105 Md. 211, 65 Atl. 921 (letter received in reply,
and purporting to be signed by the C. H. T. Co., admitted as genuine and duly authorized).
1909, Helwig v. Aulabaugh, 83 Nebr. 542, 120 N. W. 162 (reply-letters purporting to come
from defendant, followed by plaintiff's employment by defendant, admitted).
1906, Taylor v. State, 50 Tex. Cr. 381, 97 S. W. 474 (letter received by mail, but not a reply,
excluded).
1906, Leesville Mfg. Co. v. Morgan W. & I. Wks., 75 S. C. 342, 55 S. E. 768 (reply-letter
presumed genuine).
1910, Consolidated Grocery Co. v. Hammond, 5th C. C. A., 175 Fed. 641 (letter received by
mail, and purporting but not otherwise evidenced to have been elicited by a prior letter from
the addressee, excluded).
1906, Loverin & D. Co. v. Bumgarner, 59 W. Va. 46, 52 S. E. 1000 (reply-letters admitted
without proof of handwriting).
510
AUTHENTICATION OF DOCUMENTS § 2155
[Note 1 — continued]
The following statute carries the inference further :
Eng. St. 1908, 8 Edw. VII, c. 48, § 8 (in proceeding to recover goods sent by post and un-
delivered, the person from whom the packet "purports to have come" shall be presumed to
be the sender).
§ 2154. Reply-Telegram.
lNoU2;aM:]
Accord : 1905, Cobb v. Glenn B. & L. Co., 57 W. Va. 49, 9 S. E. 1005 (certain reply-telegrams
not assumed genuine).
Cmtra: 1903, Yeiser v. Cathers, — Nebr. — , 97 N. W. 840, .
§ 2155. Reply-Telephone.
[Note 3; add:]
1907, State v. Usher, 136 la. 606, 111 N. W. 811 (conversation by telephone with the de-
fendant, identified by his voice, admitted).
1908, People v. StroUo, 191 N. Y. 42, 83 N. E. 573 (detective's testimony to a telephone
conversation with the accused, admitted, the detective subsequently recognizing the voice).
[Note 4; add:]
1907, Holzhauer v. Sheeny, 127 Ky. 28, 104 S. W. 1034 (admitted where the conversation's
details helped to identify the party).
1908, Barrett v. Magner, 105 Minn. 118, 117 N. W.-245 (voice-recognition is not the exclusive
means; here the plaintiff's conversation with a person purporting to be Z., at Z.'s, office
telephone-number, was admitted on the facts).
1907, State v. Vickers, 209 Mo. 12, 106 S. W. 999 (identification in part by voice).
[Note 5, par. 1 ; add :]
1907, General Hospital Soc'y v. New Haven R. Co., 79 Coijn. 581, 65 Atl. 1065 (the failure
to identify the voice does not necessarily exclude).
1909, Miller v. Leib, 109 Md. 414, 72 Atl. 466 (conversation by telephone with a party called
up and responding as th^ plaintiff, whose voice was not known to the speaker, admitted ;
following Knickerbocker Ice Co. v. Gardiner D. Co., infra, n. 6).
1907, Kansas City S. Co. v. Standard W. Co., 123 Mo. App. 13, 99 S. W. 765 (admissions
heard over the telephone from one representing himself as defendant's agent, received).
1906, Dunham v. McMichael, 214 Pa. 485, 63 Atl. 1007 (telephone conversation alleged to
be with the defendant, excluded, because neither the witness knew defendant's voice nor
did defendant's admissions identify her; no authority cited).
[Note 6, par. 1 ; add:]
1912, Union Construction Co. ». Western U. Tel. Co., 163 Cal. 298, 125 Pac. 242 (conver-
sation with a purporting agent at the purporting office of the defendant, by telephone call
in the usual way, admitted ; careful opinion by Shaw, J.).
1907, General Hospital Soc'y v. New Haven R. Co., 79 Conn. 581, 65 Atl. 1065 (on the facts,
a conversation from an unidentified person in the office, apparently having charge, was ad-
mitted).
1907, Godair v. Ham Nat'l Bank, 225 111. 572, 80 N. E. 407 (conversation by telephone,
purporting to come from G. in his oflBce, received, though the voice was not identified).
1908, Knickerbocker Ice Co. v. Gardiner Dau-y Co., 107 Md. 556, 69 Atl. 405 (testimony
to sales of ice by defendant, based on telephone conversations with a person responding for
the defendant and purporting to be a sales agent, admitted ; approving the doctrine in the
text above).
511
§ 2155 AUTHENTICATION OF DOCUMENTS
[Note 6 — continued]
1906, St. Louis S. W. R. Co. v. Kennedy, — Tex. Civ. App. — , 96 S. W. 653 (testimony of
an offer of wages received by telephone, excluded).
[Note 7, par. 1 ; add :]
1906, Fitzgerald v. Benner, 219,111. 485, 76 N. E. 709 (certain telephone inquiries of the
opponent's agent, admitted as part of the res gestw, on the principle of § 1777, ante).
1906, Harrison G. Co. ». Pennsylvania R. Co., 145 Mich. 712, 108 N. W. 1081 (conversations
by telephone, admitted, the identity and the authority of the speakers being otherwise
shown).
[Note 7, par. 2 ; add:]
Again, in Gzowski v. Forst, (1910) 22 Ont. L. R. 441, the plaintiff testified to a contract-
conversation over the telephone with the defendant, then the defendant testified to a differ-
ent version ; witnesses who overheard the defendant's utterances, being present in the room,
were received ; here the only question could be whether the occasion was the same as that
testified to by the plaintiff, and the defendant's testimony was some evidence of that.
§ 2158. Official Custody ; General Principles, etc.
[Note 2 ; add, under Inadmissible :]
1905, Junior v. State, 76 Ark. 483, 89 S. W. 467 (magistrate's record of conviction, one wit-
ness having received it from the magistrate's successor, and another identifying the hand-
writing, excluded ; no authority cited ; McCuUoch, J., diss. ; the ruling is unsound).
[Note 2 ; add a new par.]
Some Courts reach the result by declaring judicial notice of their own records, at least in the
same suit, when produced : post, § 2579 ; but this is really a ruling that the custody is suflS-
cient evidence of genuineness, for the real question is whether a particular piece of paper is
what it purports to be.
[Note 3, par. 1, 1. 9; add:]
1906, State v. Schaeffer, 74 Kan. 390, 86 Pac. 477- (Federal revenue collector's records, proved
by an examined copy).
1906, Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064 (examined copy of land-oflBice records,
made by one to whom the land-commissioner pointed out the records in his office, admitted).
Compare the citations anie, § 1273 (examined copies).
§ 2159. Same : Application to Sundry Official Records.
[Note 1, par. 1 ; add:]
N. Y. St. 1909, e. 65, p. 22, Feb. 17 (places St. 1884, c. 376, § 1, in C. C. P. as § 961c).
[Note 3, par. 3 ; add:]
1905, Lowry Nat'l Bank v. Fickett, 122 Ga. 489, 50 S. E. 395 ; and cases cited post, § 2169.
§ 2162. Official Seal ; Mode of Authenticating, etc.
[Note 2; add:]
Eng. St. 1905, 5 Edw. VII, c. 15, § 52 (trade-marks ; documents purporting to be orders of
the Board of Trade and to be under Board seal or to be signed by its secretary etc., admis-
sible without further proof).
Alta. St. 1910, 2d sess.. Evidence Act, c. 3, § 41 (like Ont. Rev. St. 1897, c. 73, § 38).
512
AUTHENTICATION OF DOCUMENTS §2165
[Note 2 — continued]
Ont. St. 1906, 6 Edw. VII, c. 31, § 27 (certified copy, by the secretary of the railway and
municipal board, under seal of the board, of any document in custody or of record with the
board, is admissible without proof of signature).
Newf. St. 1904, c. 3, Rules of Court 34, par. 6 (similar to Rules of 1892).
Ont. St. 1909, c. 43, § 39 (UkeR. S. 1897, c. 73, § 38).
Sask. St. 1907, c. 12, Evidence Act, § 39 (like Ont. Rev. St. 1897, c. 73, § 38).
Yukon St. 1904, c. 5, § 18 (like Eng. St. 14 & 15 Vict. c. 99, § 11, omitting "Wales") ; ib.
§ 46 (like N. Se. R«v. St. 1900, c. 163, § 48).
Va. St. 1908, c. 338, p. 598 (amending Code 1887, § 3334).
§ 2164. Seal of Court, etc.
[Note 5 :]
Transfer Adams v. Way, Conn., to Note 4; and for "another State Court" read "a Federal
Court").
§ 2165. Seal of Notary.
[Note 3, par. 1 ; add :]
1888, Pape v. Wright, 116 Ind. 508, 19 N. E. 462 (New York notary's jurat to a deposition,
lacking seal, authenticated by cfertificate of the county clerk under seal).
1906, Gharst v. St. Louis T. Co., 115 Mo. App. 403, 91 S. W. 453 (Michigan notary's jurat
to a deposition, lacking a seal, authenticated by certificate of the circuit court clerk under
seal). '
1907, Sheridan Co. v. McKinney, 79 Nebr. 220, 112 N. W. 329 (a certificate lacking the date
of expiration of the notary's commission as required by Comp. St. 1903, c. 73, § 14, is not
self-authenticating ; the recital of date being equally essential with the seal itself).
The recital, by the officer certifying a copy, that the notary's certificate of acknowledg-
ment bore seal, may sufiice, even though the notarial certificate as copied shows no seal : 1912,
Davis V. Seybold, C. C. A., 195 Fed. 402 (collecting authorities).
[Note 6; add:]
1904, Kinkade v. Howard, 18 S. D. 601, 99 N. W. 91 (lack of a notary's seal to a certificate of
deposition does not exclude it, "if the authority of the officer is otherwise sufficiently shown,"
and if no express statutory requirement prescribes the contrary).
also Ashcraft v. Chapman, Conn., Pape v. Wright, Ind., Gharst v. St. Louis T. Co., Mo.,
cited supra, n. 3.
[Note 7; add:]
1907, Washburn L. Co. v. Swanby, 131 Wis. 1, 110 N. W. 806 (notary's certificate under
seal to a deed without the State; additional evidence not required, under statute).
[Note 8; add:]
1906, Pardee v. Schanzlin, 3 Cal. App. 597, 86 Pac. 812 (notary's certificate of jurat of
affidavit, under seal, presumed genuine).
1912, Nicholson v. Eureka Lumber Co., 160 N. C. 33, 75 S. E. 730 (Texas notary's seal with
signature "Delia Sadler," held to presume lawfulness of appointment of a woman).
[NoU9;add:]
1906, Williams v. Williams, 221 111. 541, 77 N. E. 928 (Virginia justice's jurat, with clerk of
circuit court's certificate of justice's authority, admitted). 1907, Bishop v. Hilliard, 227
111. 382, 81 N. E. 403. 1913, Tompkins v. Tompkins, 257 111. 557, 100 N. E. 965 (holding
613
§ 2165 ^ AUTHENTICATION OF DOCUMENTS
[Note 9 — continued]
that the foregoing Hne of decisions does not apply to a notary's autjiority to administer the
oath in a deposition taken by commission; the court's appointment by commission is an
implied authority to administer the oath ; hence the foreign statutory authority need not
be shown nor presumed).
§ 2166. Sundry OfEicial Seals.
[Note 1, at the end ; add:]
A tax-receipt must be authenticated under general rules : 1904, Chastang v. Chastang,
141 Ala. 451, 37 So. 799.
[Note 3; add:]
1910, Wynne Ji. U. S., 217 U. S. 234, 30 Sup. 447 (certified copy of a vessel's enrolment,
purporting to be signed and sealed by a deputy collector of customs, assumed genuine on
the facts).
§ 2167. Ofiicial Signatures.
[Note 4; add:]
Canada : Bma. St. 1903, 3 Edw. VII, c. 68, §§ 26, 27 (railway act ; similar to Ont. St. 1906,
c. 31, cited infra, except that under § 26 copies by the minister or inspecting engineer are
also included).
Alia. St. 1910, 2d sess., Evidence Act, c. 3, § 27 (like Ont. Rev. St. 1987, c. 73, § 24). ib.
§ 33 (like Ont. Rev. St. c. 73, § 40 ; applying it to any judge of any Court of Canada, Alberta,
and any other province and territory in Canada, and to the Board of Railway Commis-
sioners of Canada).
Br. C. St. 1910, 10 Edw. VII, c. 30, § 89 (liquor licenses; signature presumed genuine).
Ont. St. 1904, 4 Edw. VII, c. 23, § 67 (copy of an assessment roll, certified by the clerk under
seal of the municipal corporation, shall be received, " without proof of the seal or signature").
St. 1906, 6 Edw. VII, c. 31, § 26 (documents purporting to be signed by the chairman or
secretary of the railway and municipal board are evidence "without proof of any such sig-
nature") ; ib. § 27 (similar, for certified copies, by the secretary, of a document deposited
with the board). St. 1909, c. 43, § 24 (hke R. S. 1897, c. 73, § 24) ; ib. §§ 30, 31 (like ib.
§ 30, adding the railway commissioners and other ofiicers) ; ib. § 41 (like ib. § 40).
P.. E. I. St. 1907, 7 Edw. VII, c. 3, § 25 (liquor offences ; prior conviction provable by magis-
trate's certificate, without proof of his signature or official character).
Sash. St. 1907, c. 12, Evidence Act, §§ 7, 8 (like Ont. Rev. St. 1897, c. 73, § 24). St. 1908,
c. 14, § 116 (liquor licenses; attorney-general's certificate to be evidence, "without any
proof of his appointment or signature"). St. 1913, c. 36 (amending the Evidence Act, Rev.
St. 1909, c. 60, by inserting §§ 12 a-d; certain certificates of inspection etc., issued under
the Canada Grain Act, to be received "without any proof of the signature" of the officers) ;
St. 1913, c. 64, § 124 (similar, for provincial analyst's certificate of Uquor analysis).
Yvkcm St. 1904, c. 5, § 7 (like Dom. St. 1893, c. 31, § 15) ; ib. § 8 (similar, for orders of
the Yukon Territorial Secretary).
United States : Minn. St. 1905, c. 305, § 38 (registration of title ; owner's attested or
acknowledged receipt for a duplicate in place of a lost original certificate ; the signature
shall be presumed genuine).
The following statute sanctions an unsafe practice : Mass. St. 1907, c. 225, p. 168 (fac-
simile of the signature of register of deeds, register of probate, or recorder of land court,
"imprinted by him or by his assistant," on a certified copy, to "have the same validity as
his written signature"). Either no signature at all should be required, or else a real sig-
nature ; but a facsimile stamp is either a falsehood or else a childish and futile plaything, —
in either case not a fit thing for the law to recognize.
514
AUTHENTICATION OF DOCUMENTS § 2183
[Note 5, par. 1 ; add:]
1909, Turner's Case, 3 Cr. App. 103, 155, [1910] 1. K. B. 346 (signature of Director of Public
Prosecutions, not noticed as genuine ; "there happens to be no statute authorizing a Court
to take notice of the signature of the Director of Public Prosecutions") ; 1909, Waller's
Case, 3 Cr. App. 213, 222, [1910] 1 K. B. 364 (similar).
1906, State v. Hopkins, 118 La. 99, 42 So. 660 (deputy coroner's signature, judicially noticed).
§ 2168. OfEicial Character and Title to Ofiice.
[Note 4, par. 1 ; add :]
1904, Leech v. Karthaus, 141 Ala. 509, 37 So. 696 (certificate of acknowledgment by "W. S.
Wells, Jr., N. P.," held sufficient).
1905, Old Wayne M. L. Ass'n v. McDonough, 164 Ind. 321, 73 N. E. 703 (a certified tran-
script signed with initials only of the judge's and clerk's Christian names su£Sces).
§ 2169. Corporate Seal.
[Note 2; add:]
1905, Collier v. Alexander, 142 Ala. 422, 38 So. 244.
Ala. St. 1911, No. 62, p. 31, Feb. 20, § 1 (execution by president etc. presumes authority).
1906, Bliss V. Harris, 38 Colo. 72, 87 Pac. 1076 (corporate seal is presumed genuine, and the
secretary's authority is presumed).
1907, Bottomley v. Hall, 18 Haw. 412 (deed bearing corporate seal, with signatures of
president and secretary, admitted).
1908, Elkhart H. Co. v. Turner, 170 Ind. 455, 84 N. E. 812 (president's signature to note ;
authority not presumed).
1903, Quackenboss v. Globe & R. F. Ins. Co., 177 N. Y. 71, 69 N. E. 223.
1914, United Surety Co. v. Meenan, — N. Y. — , 105 N. E. 106 (corporate seal, with signa-
tures of president and secretary; authority presumed).
1906, Deepwater Council v. Renick, 59 W. Va. 343, 53 S. E. 552 (deed under seal, signed by
the chief officers; authority presumed).
§ 2180. Rules of Absolute Exclusion ; Indecency.
[Note 1 ; add:]
1909, Dunkin v. Hoquiam, 56 Wash. 47, 105 Pac. 149 (rupture of bowels, in an action for
personal injury ; exhibition allowed, quoting the above text).
§ 2183. Illegality ; Documents, Chattels, etc.
[Note 1, par. 1, Accord; add:]
Ga. : 1899, Dozier v. State, 107 Ga. 708, 33 S. E. 418 (cited post, § 2264). 1904, Springer v.
State 121 id. 155, 48 S. E. 907 (pistol taken from the accused ; this line of cases in Georgia
does not carefully distinguish the present principle and that of § 2264, post). 1906, Duren
V. Thomasville, 125 Ga. 1, 53 S. E. 814 (like Williams v. State).
Haw. : 1903, Terr. v. Sing Kee, 14 Haw. 586, 588 (liquor obtained by unlawful search is
admissible).
Ida. : 1906, State v. Bond, 12 Ida. 424, 86 Pac. 43 (letter of the accused ; mode of obtaining
it, held immaterial).
Kan. : 1905, State v. Schmidt, 71 Kan. 862, 80 Pac. 948 (bottles of liquor seized withouta
warrant, admitted). 1910, State v. Turner, 82 Kan. 787, 109 Pac. 654 (revolver procured
from defendant by threats).
Md ■ 1906, Lawrence v. State, 103 Md. 17, 63 Atl. 96 (conspiracy to defraud ; certain shares
515
§ 2183 RULES OF EXTRINSIC POLICY
[Note 1 — contirmed]
of stock, taken by the police from a satchel at the defendant's hotel or from the defendant's
person under arrest, admitted, regardless of the illegality of procuring them).
Mass. ; 1905, Com. v. Tucker, 189 Mass. 457, 76 N. E. 127 (officers obtaining a knife, by a
trespass and search in the defendant's house; admitted).
Mich.: 1911, People v. Aldorfer, 164 Mich. 676, 130 N. W. 351 (liquors seized under a
search-warrant).
Minn.: 1905, State v. Strait, 94 Minn. 384, 102 N. W. 913 (bank books). 1906, State v.
Hoyle, 98 Minn. 254, 107 N. W. 1130 (gambling apparatus obtained by officers' unlawful
entrance, admissible). '
Mont. : 1906, State v. Fuller, 34 Mont. 12, 85 Pac. 369 (defendant's shoes compared with
footprints).
Nebr. : 1907, Younger v. State, 80 Nebr. 201, 114 N. W. 170 (shoes taken by force from the
accused).
N. Y. : People v. Adams, supra, affirmed on writ of error in Adams v. N. Y., U. S. cited infra.
N. C. : 1912, State v. Wallace, 162 N. C. 622, 78 S. E. 1 (letter found by a policeman search-
ing defendant's house, admitted, following Adams v. N. Y., U. S., infra).
S. D. : 1909, State v. Madison, 23 S. D. 584, 122 N. W. 647 (liquors found under an illegal
warrant).
Tenn. : 1908, Cohn v. State, Perkins v. State, Horton v. State, 120 Tenn. 61, 109 S. W. 1149
(illegal sale of liquor, etc. ; testimony obtained by unlawfully trespassing and making a peek-
hole in a wall, admitted).
Vt. : 1906, State v. Suitor, 78 Vt. 391, 63 Atl. 182 (liquor offence ; liquor, etc., obtained on
a search-warrant, admitted, irrespective of the legality of the search).
Wash. : 1905, State v. Royce, 38 Wash. Ill, 80 Pac. 268 (articles obtained by illegal search
of the person are admissible).
[Note 1, par. 2, Contra; add:]
Georgia : 1907, Hammock v. State, 1 Ga. App. 126, 58 S. E. 66 (carrying a concealed weapon ;
a deputy sheriff arrested the defendant on information and searched him without a warrant
for arrest or for search, and found a concealed weapon; the deputy's testimony was ex-
cluded ; this is a flat repudiation of Williams v. State, although the opinion endeavors to
distinguish it; the opinion terms the arrest "illegal," though the defendant was certainly
committing a misdemeanor in fact in the deputy's presence, and the arrest was ordinarily
legal ; the opinion goes on the ground that there was a compulsory self-incrimination, but
this is quite unsound, for the deputy took the pistol out of the defendant's pocket, and
the defendant himself did no voluntary act at all; the opinion frankly avows "a public
policy which would rather see the guilty go unpunished than have the guilt of the accused
established" in this manner; Powell, J., the writer of the opinion, is one of our most ac-
complished living judges ; but in a country so cursed by the use of concealed weapons the
"public policy" thus declared is the worst kind of a policy ; and it is undoubtedly doing just
what it confesses to, viz. letting the guilty go unpunished). 1907, Hughes v. State, 2 Ga.
App. 29, 58 S. E. 390 (repeating the ruling of Hammock v. State ; the opinion, by Russell,
J., professes "the utmost abhorrence and detestation of the practice of carrying deadly
weapons"; but this term "utmost" is scarcely con-ect; for the learned Court obviously
feels a still more intense abhorrence for a zealous poUce officer's attempts at suppression of
a detestable crime without formalities which the event shows \yere quite needless). 1907,
Sherman v. State, 2 Ga. App. 686, 58 S. E. 1122 (foregoing cases followed). 1907, Smith
V. State, 3 Ga. App. 326, 59 S. E. 934 (selling liquor illegally ; testimony by officers arrest-
ing in the act, and seizing whisky, without a warrant ; the Hughes and Hammock cases
approved but distinguished ; the opinion is interesting as the exhibition of an able mind
unsuccessfully struggling to be consistent). 1912, Whitaker v. State, 11 Ga. App. 208, 75
S. E. 258 (U. S. bankruptcy petition, excluded on this ground; but incorrectly). 1913,
Underwood v. State, 13 Ga. App. 206, 78 S. E. 1103 (illegal sale of liquor; the accused 'was
516
EVIDENCE ILLEGALLY OBTAINED • § 2190
[Note 1 — continued]
arrested without a warrant, his safe-keys forcibly taken from his pocket, his safe unlocked,
and whisky found therein; excluded, following Hammock v. State; careful opinion by
Hill, C. J.).
United States : Boyd v. U. S., supra, was for a while practically overruled by later cases :
1904, Adams v. New York, 192 U. S. 585, 24 Sup. 372 (seizure of papers under a search-war-
rant ; Boyd v. U. S. is mentioned with respect, but Com. v. Dana, Mass., and the above line
of cases, are expressly approved, and it is said that the Amendment is intended to "give
remedy against such usurpations when attempted" and "to render invalid legislation or
judicial procedure having such effect," but not to "exclude testimony which has been ob-
tained by such means, if it is otherwise competent"), Hale v. Henkel, U. S. (cited post,
§ 2264). 1908, U. S. v. Wilson, C. C. S. D. N. Y., 163 Fed. 338 (trunk and contents of
defendant seized by officers on defendant's premises ; motion for return of property denied ;
as to later admissibility on trial of the evidence thus found, the Court says : "Any objection
because of trespass will be overruled. . . . This proposition is stated by the Supreme
Court of the United States in the case of Adams v. N. Y., and is so well recognized that it
cannot be the subject of much discussion" ; whence may be inferred that the profession were
not the only ones surprised by the later decision in Weeks ». U. S., infra) . 1910, Holt ». U. S.,
218 U. S. 245, 31 Sup. 2 (Adams v. U. S. approved). 1914, Weeks v. U. S., 232 U. S. 383,
34 Sup. 341 (use of the mails for lottery ; documents found by the police and marshal in
the defendant's house, entered and searched without a warrant, excluded ; Adams v. New
York distinguished on the ground that there the point was "collateral," while here the de-
fendant had before trial moved for the return of the documents and the trial Court refused
to return those used in evidence ; this distinction is vain ; in effect, this decision violates
the principle; see further comments by the present writer in the Illinois Law Review,
IX, 43.)
[Note 1, par. 3; add:]
Compare the cases cited post, §§ 2264, 2265 (articles obtained by violation of the privilege
against self -crimination).
Of course, in a proper proceeding, such as an application for the return of documents or
chattels unlawfully seized, the illegaUty can be redressed : 1910, U. S. v. Mills, C. C. S. D.
.N. Y., 185 Fed. 318.
§ 2184. Same : Documents Violating Stamp- Tax Laws.
[Noted; add:]
1905, Thompson v. Calhoun, 216 111. 161, 74 N. E. 775.
1906, Phillips V. Hazen, 132 la. 628, 109 N. W. 1096.
1906, Amos-Richia v. Northwestern M. L. Ins. Co., 143 Mich. 684, 107 N. W. 707.
1906, King v. Phoenix Ins. Co., 195 Mo. 290, 92 S. W. 892.
But the Federal powers of legislation do extend to the Territories, and hence the tax-
stamp laws are there enforced : 1903, Makainai v. Goo Wan Hoy, 14 Haw. 607, on rehearing,
683.
[Note 7; add:]
1907, Bottomley v. Hall, 18 Haw. 412 (post-stamping).
§ 2190. Rules of Privilege ; History of Testimonial Compulsion.
[Note 28; add:]
Mr. Kerly, in his Historical Sketch of the Equitable Jurisdiction of the Court of Chancery
(1890, p. 45), has pointed out that the tradition as to the invention of the subpoena form is
unfounded ; it existed much earlier in other processes.
517
§ 2191 RULES OF PRIVILEGE
§ 2191. Constitutional Guaranty of Compulsory Process.
[Note 1, par. 1 ; add:]
Wash. St. 1909, c. 249, p. 907, § 55 (Criminal Code ; compulsory process demandable for
"all witnesses who may be necessary for his proper defence").
[Note 2, par. 2, 1. 2; add:]
1906, State v. Stewart, 117 La. 476, 41 So. 798 (testimony of a proposed witness admitted to
prevent a continuance ; the constitutional right covers merely the right to process by sub-
poena, and not the further discretionary power of the Court to attach a desired witness for
failure to obey the subpoena).
[Note 2, par. 2, at the end; add:]
The right to process does not include a right of consultation with the witness before trial :
1906, State v. Goodson, 116 La. 388, 40 So. 771 (defendants not allowed to obtain informa-
tion from a co-indictee in jail).
The constitutional principle does not prevent the limitation of number of witnesses, wher-
ever that is otherwise allowable (ante, § 1907).
§ 2192. Duty to Give Testimony ; General Principle.
[Text, p. 2966 ; add a footnote la, to the\passage from Bentham :]
^" Bentham's illustration came very nearly true in R. v. Baines, [1909] 1 K. B. 258, cited
more fully post, § 2210, n. 2, and § 2371, n. 1, where the Prime Minister and the Home
Secretary were subpoenaed to testify as to a breach of the peace committed at a meeting
where they were present.
[Teo^, p. 2967, 1. 2 ; add, as a note 1 6 to Israel v. State ;]
1 Accord: 1906, Washington Nat'l Bank v. Daily, 166 Ind. 631, 77 N. E. 53 (cited post,
§ 2193, n. 3 ; good opinion by Hadley, J.).
[Note 1; add:]
1906, Clark, C. J., in State v. Wheeler, 141 N. C. 773, 53 S. E. 358.
§ 2193. Testimonial Duty applied to Production of Documents.
[Note 3; add:]
1908, R. V. Daye, 2 K. B. 333 (a sealed packet deposited with a banker is a subject for sub-
poena under a statutory term "produce documents"; this was the celebrated Lamoine
diamond-formula fraud, and the packet was said to contain the pretended formula).
1904, Dancel v. Goodyear S. M. Co., 128 Fed. 753, C. C. (U. S. v. Tilden followed). 1904,
Crocker-Wheeler Co. «. Bullock, 134 Fed. 241 C. C. (following the rule of U. S. v. Tilden,
on authority).
[Note 3 ; add, at the end :]
A statute may therefore create new forms of process: 1906, Washington Nat'l Bank v.
Daily, 166 Ind. 631, 77 N. E. 53 (a statute empowering an assessor to obtain a writ of in-
spection of documents in possession of any person containing evidence of the unlawful omis-
sion of a third person from the taxable-property list is constitutional, the process being anal-
ogous to a subpoena duces tecum).
§ 2194. Testimonial Duty applied to Premises, Chattels, etc.
[Note 5; add:]
The above passage quoted with approval, by Powell, J. : 1910, Crosby v. Potts, 8 Ga. App.
463, 69 S. E. 582.
518
TESTIMONIAL DUTY IN GENERAL §2195
[Note 6, par. 1 ; add:]
Accord: 1908, Gray v. State, 55 Tex. Cr. 90, 114 S. W..635 (murder; whether two
bullet-holes, one in the deceased's back and one in his breast, were made by two bul-
lets fired by the deft., or by a single bullet entering and leaving and fired from the
front ; if the former, two bullets would be found in the body ; deft, applied for an order
to perform an autopsy; deceased's body had been buried by his relatives, who refused
to consent to an exhumation; the trial Court having refused the application, and
a verdict of guilty being rendered, the judgment was set aside for that error; Ramsey, J.,
in an able and convincing opinion; "In legal reason, and based on public policy and
enlightened justice, there can be no reasonable doubt as to what the Court should do
in such a case as is here presented ; . . . the power inheres in such a court ; ... if it
can be said that there is no precedent for such an action, it can never be said again";
Brooks, J., diss., on the ground of the immateriality of the fact sought).
1906, Mutual Lite Ins. Co. v. Griesa, C. C. Kan., 156 Fed. 398 (insured fell from
the roof of a house and died ; the issue was whether he had committed suicide by taking
morphine and had intentionally fallen so as to conceal the suitlde ; the insurer's application
for an order to exhume the body and to appoint a pathologist to examine it was granted :
excellent opinion by Smith McPherson, J.).
1914, State v. Clifford, — Wash. — , 139 Pac. 650 (claim of alleged children of an intestate
to inherit ; the opposing administrator maintained that the intestate had been castrated in
infancy, and that the claimants, children of his first wife, were therefore not of his paternity ;
on aflSdavits of physicians that an examination of the body would disclose with reasonable
certainty whether he had been castrated, the trial Court ordered an exhumation, in pro-
ceedings to approve the administrator's report; an alternative writ of prohibition was
denied, on technical grounds).
Contra: 1904, McKnight v. Detroit & M. R. R. Co., 135 Mich. 307, 97 N. W. 772 (physi-
cian's action for services to injured passengers at the defendant's request ; one of these pas-
sengers, having testified for the defendant, was asked by the defendant to exhibit
his leg to the jury, but dechned ; held privileged ; no authority cited in support).
Compare the cases cited ante, § 1862, and post, § 2221.
§ 2195. Officers possessing Power to Oompel Testimony, etc.
[Note 1; add:]
1906, Ex parte Parker, 74 S. C. 466, 55 S. E. 122.
1912, Ex paHe Wolters, 64 Tex. Cr. 238, 144 S. W. 531.
1909, Harriman v. Interstate Commerce Commission, 211 U. S. 407, 29 Sup. 115.
1913„Sullivan v. Hill, — W. Va. — , 79 S. E. 670 (legislative committee).
The power of a State to use testimonial process against a, foreign corporation doing busi-
ness within the State is noticed in Consolidated Rendering Co. v. Vermont, 207 U. S. 541,
28 Sup. 178 (1908).
[Note 2; add:]
1907, Mclntyre v. People, 227 111. 26, 81 N. E. 33.
1906, Re Butler, 76 Nebr. 267, 107 N. W. 572.
1906, Ex parte Schoepf, 74 Oh. 1, 77 N. E. 276, 279.
1904, Dancel v. Goodyear S. M. Co., 128 Fed. 753, C. C. (subpoena duces tecum).
[Note 3, par. 1; add:]
1911, Plunkett v. Hamilton, Hamilton v. Plunkett, 136 Ga. 72, 70 S. E. 781 (police com-
mission).
1912, Witmer v. District Court, 155 la. 244, 136 N. W. 113 (whether certiorari is a proper
mode of trying the order of commitment).
519
§ 2195 TESTIMONIAL DUTY IN GENERAL
[Note 3 — continued]
1904, Olmsted v. Edson, 71 Nebr. 17, 98 N. W. 415 (county judge). 1909, Ex parte Button,
Ex paHe Hammond, 83 Nebr. 636, 120 N. W. 203 (justice of the peace).
1910, Boston & Maine R. Co. v. State, 75 N. H. 513, 77 Atl. 996.
[Note 7; add:]
1911, Long V. Hawken, 114 Md. 234, 79 Atl. 190.
1914, Ex parte Hendersen, — N. D. — , 145 N. W. 574.
1912, In re Greene, 35 R. I. 67, 85 Atl. 552.
1908, Sewanee C. C. & L. Co. v. Williams, 120 Tenn. 339, 107 S. W. 968.
§ 2196. Privilege Personal to Witness.
[Note 1; add:]
1910, McCray v. State, 134 Ga. 416, 68 S. E. 62 (party held not entitled to claim the priv-
ilege against disgracing facts, where the witness had not claimed it).
1875, Blease v. Garlington, 92 U. S. 1, 7 (under Rev. St. 1878, § 862, and Equity Rule 67,
"the examiner before whom witnesses are orally examined is required to note exceptions j
but he cannot decide upon their validity ; he must take down all the examination in writ-
ing, and send it to the Court with the objections noted," as also when depositions are
taken).
1906, Dowagiac Mfg. Co. v. Lochren, C. C. A., 143 Fed. 211 (collecting the cases). 1912,
Young V. Welch Mfg. Co., D. C. Mass., 201 Fed. 563 (the rule in Blease «. Garlington is
further subject to exception for matters improperly asked for on cross-examination beyond
the scope of the direct examination ; this is thoroughly unsound ; it makes a fetish out of
this discreditable Federal rule as to scope of cross-examination). Rev. St. § 869; Equity
Rules 1912, Rules 51, 62. 1913, State v. Lloyd, 152 Wis. 24, 139 N. W. 514 (State fire-
marshal).
[Note 3, par. 2, add:]
1894, Re Sims, 54 Kan. 1, 37 Pac. 135. 1906, State v. Carter, 74 Kan. 156, 86 Pac. 138
(holding St. 1901, c. 233, to be void).
1904, Lawson v. Rowley, 185 Mass. 171, 69 N. E. 1082 (justice of the peace).
1906, State v. Standard Oil Co., 194 Mo. 124, 91 S. W. 1062 (commissioner). 1911, Ex parte
Sanford, 236 Mo. 665, 139 S. W. 376 (State board of equalization).
1906, Bank v. Johnsoji, 143 Fed. 463, 466, C. C. A. (referee in bankruptcy).
§ 2199. Notice and Summons ; Subpoena.
[Text, p. 2977, 1. 4 of par. 2 ; at the sentence's end, add a new note 1 o :]
^"i The subject of testimony must be in some way indicated :
1909, In re Shaw, C. C. S. D. N. Y., 172 Fed. 520 (a subpoena which does not notify the
witness of the matter on which he is called to testify, by stating either the name of the
parties or the subject of the investigation ; a clause requiring him to tell "what you may
know generally" is invalid). Compare the same principle for the subpoena duces tecum
(post, § 2200, n. 6).
[NoU3;add:]
The service cannot be made on the witness by attorney : 1906, Re Depue, 185 N. Y. 60, 77
N. E. 798.
Modern methods may well be appUcable here : Ark. St. 1907, No. 260, p. 605, May 6,
§ 1 (service of subpoena by telephone, valid).
520
TESTIMONIAL DUTY IN GENERAL §2200
[Note 4; add:]
' 1906, Ex parte Terrell, — Tex. Cr. — ,95 S. W. 536 (reading over the telephone does not
suflBce).
Note in 22 Harvard Law Review 376.
[Note 6,1. 2; add:]
1859, Goodpaster v. Voris, 8 la. 334 ("The object of the summons is only to give notice and
to call the witness in, and if he is already in court, he requires no further notice").
1836, Leckie v. Scott, 10 La. 412, 417 ("Any person within the verge of the court during the
trial may be called upon to disclose the truth").
1831, Farmer v. Storer, 11 Pick. 241 (taxation of costs).
1886, U. S. V. Sanborn, 28 Fed. 299 (collecting the cases as to the right to fees). 1889,
Eastman v. Sherry, 37 Fed. 844 (right to fees).
[Note &; add:]
That a judicial order, apart from a subpoena, is a proper mode of compelling attendance,
is sometimes denied : 1906, Re Depue, 185 N. Y. 60, 77 N. E. 798.
Whether a particular officer has power to compel testimony is often a question {ante,
§ 2195).
[Note 6; add:]
Cal. St. 1913, c. 157, p. 238, May 21 (amending P. C. § 1333).
1908, In re Thaw ; O'Mara v. Lamb, 3d C. C. A., 166 Fed. 71 (writ held not to be of right,
but of discretion ; here refused for bringing to a bankruptcy proceeding a witness confined
in a State asylum for criminal insane, the witness being presumably incompetent).
The witness may before trial be detained for appearance on the trial; and the power
to commit for this purpose, in default of bail, is inherent in a court, irrespective of statutory
grant.
1910, Crosby v. Potts, 8 Ga. App. 463, 69 S. E. 582 (liberal opinion, by Powell, J.).
§ 2200. Subpcena duces tecum for Doctunents.
[Note 4:; add:]
1908, Kincaide v. Cavanaugh, 198 Mass. 34, 84 N. E. 307.
[Note 6; add:]
1866, Lee v. Angus, L. R. 2 Eq. 59 (a subpoena d. t, in a suit concerning a mortgage, to pro-
duce accounts relating to rents, etc., "and all other books, accounts, letters, papers, and
documents in your possession or power, in any wise relating to the affairs and concerns of
the said plaintiffs, or either of them, or the said H. L., and all books, accounts, letters, papers,
and documents received by you from H. E. S. as solicitor of M. C," held too broad ; Page-
Wood, V. C. : "He must speak the truth within his knowledge ; but he is not bound to make
this burdensome search for evidence at his own expense").
1910, Ex parte Gould, — Mo. — , 132 S. W. 364 (grand jury inquiry into violations of the
liquor law ; subpoena d. t. to the telegraph operator at Baird ordering production of all
messages filed with him bearing orders for deUvery of intoxicating liquors to Baird, held too
broad ; this paralyzing of the grand jury's function is defended by much misplaced senti-
mental rhetoric).
1914, In re Mohawk Overall Co., 210 N. Y. 474, 104 N. E. 924, 156 App. Div. 879 (burden-
some scope of a subpoena d. t, considered).
1908, American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529, 70 Atl. 867 ("An
order to produce all papers concerning the matter in dispute is not sufficiently specific";
approving the text above).
1904, Dancel v. Goodyear S. M. Co., 128 Fed. 753, 762, C. C. (an application for "all books
621
§ 2200 TESTIMONIAL DUTY IN GENERAL
[Note 6 — continued]
of account, minutes," etc., etc., of the G. S. M. Co., and a long list of other documents named
generally, held too broad on the facts). 1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370 (a
call for all the correspondence, etc., between the defendant's corporation and six others, all
correspondence since its date of organization between itself and thirteen others, etc., held
to be unreasonably broad ; McKenna, J., diss.). 1906, McAlister v. Henkel, ib. 90, 26 Sup.
385 (here the subpcena was held specific enough). 1906, U. S. v. American Tobacco Co., 146
Fed. 657, C. C. (a subpoena calling for the minute-books of a corporation for a period of
three years and the copy-letter-books for a period of three and a half months, held not too
broad). 1908, Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. 178 (notice
held not too broad).
1907, Re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790 (an order under St. 1906, No.
75, p. 79, directing a corporation to produce before the grand jury certain described classes
of documents, held proper and not a, violation of the constitutional provision against un-
reasonable searches). ,
Furthermore, on an application for a subpoena d. t., production being contested on the
ground of irrelevancy, the movant must shovf facts sufficient to enable the Court to determine
whether the desired documents are material and relevant to the issues.
1907, U. S. V. Terminal R. Ass'n. C. C. E. D. Mo., 154 Fed. 268 (collecting the cases).
[Note 8, 1. 5; add:]
1807, Burr's Trial, Robertson's Rep., I, 136, 137, 182, 183, 184 (conceded by the parties,
and agreed by Marshall, C. J., that the process of subpoena d. t. is "not a process of right,"
but "a motion to the discretion of the Court"). 1890, Edison El. L. Co. v. U. S. El. L. Co.,
44 Fed. 294, 45 id. 55, C. C. (the Court will not finally determine the materiality of the docu-
ments called for upon the refusal of the witness to produce, but will inspect and determine
for itself). 1904, Dancel v. Goodyear S. M. Co., 128 Fed. 753, C. C. (on a deposition de
bene under U. S. Rev. St. § 863, a subpoena duces tecum does not issue from the clerk as a
matter of course, but the application "is addressed to the discretion of the Court," and
"before compelling the production . . . it will sufficiently inquire into the matter to deter-
mine if the evidence appears to be material"). 1906, Dowagiac Mfg. Co. v. Lochren, 143
Fed. 211, C. C. A. (collecting the cases). 1906, Fairfield v. U. S., 146 Fed. 508, C. C. A.
("The duty of a witness to obey a subpoena is not conditioned by his own or by his counsel's
opinion of the materiality of his testimony").
1907, Re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790.
Here compare the general rule that irrelevarusy is not a ground for a witness* claim of
privilege (post, § 2210).
[Note 9; add:]
Cal. C. C. P. § 2064, as amended by St. 1907, c. 395 (quoted post, § 2210).
1913, ShuU V. Boyd, 251 Mo. 452, 158 S. W. 313 (which the Court, not the witness, decides).
1904, Dancel v. Goodyear S. M. Co., 128 Fed. 753, 762, C. C. (the Court may require pre-
liminary proof of the witness' possession before issuing process).
1907, Re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790 (foreign corporation, ah-eady
admitted to do business in the State, and subpoenaed d. t. before a grand jury ; its removal
of the books out of the State, in anticipation of the inquiry, held no excuse).
The following statute provides for a special situation :
N. Mex. St. 1907, c. 84, p. 192, § 3 (in proceedings to take testimony for use in a court out-
side the Territory, "no witness shall be required to deliver up any book, paper, or writing
to be annexed to the said deposition and taken out of the Territory").
[Note 10, par. 1 ; add:]
1906, Nelson ®. U. S., 201 U. S. 92, 26 Sup. 358 (corporate officers having custody of docu-
ments of the corporation are the proper persons to produce).
522
TESTIMONIAL DUTY IN GENERAL § 2201
[Note 10 — continued]
1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370 (the Court noticed a claim by a corporation-
officer that he could not "collect the documents within the time allowed," and held that
this merely would entitle him to demand further time). 1906, U. S. v. American Tobatjco
Co., 146 Fed. 557, C. C. (a secretary held not liable to produce certain documents in the
exclusive custody of the president of the corporation).
But of course a member of a partnership has a control over documents of the firm : 1906,
U. S. V. Collins, 145 Fed. 709, D. C.
Whether under U. S. Rev. St. 1878, § 724 (quoted ante, § 1859, n. 6), authorizing an
order, on motion, to "parties" to produce, the officers of a corporation-party are subject to
such a process is an interesting question : 1907, Cassatt v. Mitchell C. & C. Co., — C. C. A.
— , 150 Fed. 32, 38 (order denied). Compare the reverse question posi, § 2219, n. 8 (whether
a subpoena d. t. is appropriate for a party).
[Text, p. 2980, par. 4, at the end; add:]
It seems highly desirable that Courts should for this purpose recognize a
form of subpoena ordering a court-official to go and fetch the corporation-docu-
ments, and forbidding the custodian to hinder, but permitting the custodian to
attend voluntarily with the books if he so prefers. The reason is this : Under
the privilege of self-crimination, the custodian (clerk, secretary) may refuse
1;o produce if the books tend to criminate himself as well as the corporation
{■post, §§ 2259, 2264), which will sometimes be the case; yet the corporation
itself may not have the privilege {post, § 2259), or the prosecution may be
willing to give immunity {post, § 2281) to the corporation but not to its officer ;
hence, so long as the subpoena has to be directed to the custodian when the
object is merely to get the corporation-books, that object is likely to be de-
feated. A form of process should therefore be sanctioned which will obtain
the corporation-books without involving process against the custodian-agent
of the corporation.
§ 2201. Indenmity for Expenses ; Tender in Advance.
[NoteQ; add:]
Canada: Sask. St. 1907, c. 12, Evidence Act, § 38 ("No person shall be obliged to attend
or give evidence" in any proceeding "unless he is first tendered his legal fees for such at-
tendance and necessary travel"). Yukon St. 1904, c. 5, § 39 (no person is compellable to
attend in court, etc., unless on tender of fees "for such attendance and necessary travel").
United States: Fla. Rev. St. 1892, §§ 2867, 2875; St. 1893, c. 4120; St. .1903, c. 5132;
1906, Pittman v. State, 51 Fla. 94, 41 So. 385 (foregoing statutes construed, as to the neces-
sity of tender of costs by the accused).
Ida. : 1906, Anderson v. Ferguson-Bach S. Co., 12 Ida. 418, 86 Pac. 41 (right to compensa-
tion, considered).
Kan.: 1910, State v. Kaemmerling, 83 Kan. 387, 111 Pac. 441 (rule requbing tender not
applied to a State action to enjoin a nuisance).
N. Y. : 1906, Re Depue, 185 N. Y. 60, 77 N. E. 798 (statute applied).
N. C. Rev. 1905, § 1298 (like Code 1883, § 1368).
Vt. : 1907, Re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790 (in a grand jury inquiry,
the State need not tender the fees and expenses of producing documents to a witness, here
a corporation; in a criminal case, "a witness has no right to refuse to attend because his
fees are not tendered").
523
§ 2201 TESTIMONIAL DUTY IN GENERAL
[Note 9; add:]
A voluntary attendance without subpoena or demand of expenses does not entitle the
fees to be taxed afterwards against the other party : 1909, Atherton v. Atlantic C. L. R.
Co., 82N. C. 474, 64S.E. 411.
[Note 11; add:]
1907, Re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790 (applied to a subpcEna d. t.
to a corporation to produce documents; West v. State, Wis., approved).
§ 2203. Same : Expert's Fees.
[Note 1 ; add :]
Can.: 1905, Butler v. Toronto Mutoscope Co., 11 Ont. L. R. 12 (medico-electric experts,
called to give an opinion as to the capability of a machine to cause an injury, held not priv-
ileged to require extra fees before testifying).
Mich. St. 1905, No. 175 (forbids the payment of special fees even by the parties ; cited
more fully ante, § 562, n. 1).
Wis. : 1909, Philler v. Waukesha Co., 139 Wis. 211, 120 N. W. 829 (expert must testify
without extra compensation).
The Scotch law appears to justify the privilege of an extra fee : 1903, TurnbuU v. North
British R. Co., 5 Ct. Sess. Cas. 5th ser. 944.
[Note 2; add:]
1907, Stevens v. Worcester, 196 Mass. 45, 81 N. E. 907 (an expert on mill rights, who had
formed an opinion and recorded it in a memorandum, held compellable to examine and
read the paper, though not to labor for forming an opinion).
1908, Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. 178 (extra expense of
collecting documents of a foreign corporation ; semble, not decided),
1909, Philler v. Waukesha Co., 130 Wis. 211, 120 N. W. 829 (medical examination of an
accused in jail).
[NoteS; add:]
1910, Gordon v. Conley, 107 Me. 286, 78 Atl. 365 (experts retamed to investigate, etc.).
[Note 5, par. 1 ; add:]
N. C. Rev. 1905, § 2803 (like Code 1883, § 3756 ; adding that physicians in criminal ac-
tions in Iredell Co. shall be allowed five dollars per diem).
S. C. St. 1905, No. 457 ("physicians and surgeons bound over or summoned by the
State to testify as experts in any case in the Court of General Sessions, or actually bound
over at the instance of the defendant to testify as experts in any case of felony" in that
Court, shall receive five dollars besides the usual witness fees ; provided the judge certify
the testimony to be material).
§ 2204. Inability to Attend ; in general.
[Note 1, at the end; add:]
It would seem absurd to suppose that precisely the contrary objection should be raised,
i. e. that the witness was entitled not to be examined at his home, on account of disturbance
to his family, etc. ; but such an objection was sustained in McSwane v. Foreman, 167 Ind.
171, 78 N. E. 630 (1906).
§ 2206. Same : (b) Sex ; Occupation, etc.
[Note 2; add:]
1913, In re Pierce, 163 N. C. 247, 79 S. E. 507 (a lawyer has no exemption as such ; fine
opinion by Clark, C. J.). ^
524
SUNDRY PRIVILEGED TOPICS § 2212
§ 2207. Same : Distance from Place of Trial.
[Note 1 ; add :]
1902, Re Hemstreet, 117 Fed. 668, D. C. (bankruptcy ; the efPect of Bankruptcy Act, § 41,
and Rev. St. § 876, determined ; a witness need not leave his State to attend before a ref-
eree). 1906, Re Cole, 133 Fed. 414, D. C. (similar).
§2210. Privilege; Irrelevant Matters.
[Note 1, par. 1 ; oM:]
1906, Anin's Petition, 17 Haw. 338 (before the grand jury).
1909, Finn v. Winneshiek Dist. Court, 145 la. 157, 123 N. W. 1066.
1906, Ex parte Gfeller, 178 Mo. 248, 77 S. W. 552 {Ex parte McKee followed).
1909, Ex parte Button, Ex parte Hammond, 83 Nebr. 636, 120 N. W. 203 (not clear).
1910, Boston & Maine R. Co. v. State, 75 N. H. 513, 77 Atl. 996.
1904, Crocker-Wheeler Co. v. Bullock, 134 Fed. 241, 244 C. C. ("It seems to be settled that,
ordinarily at least," no such privilege exists). 1906, Dowagiac Mfg. Co. v. Lochren, 143
Fed. 211, C. C. A. (collecting the authorities). 1906, Nelson v. U. S., 201 U. S. 92, 26 Sup.
358, and cases cited ante, § 2200, n. 8 (documents).
The following case shows the sensible way of dealing with a witness summoned who has
no relevant testimony :
1909, R. V. Baines, 1 K. B. 258 (subpoena to the Prime Minister and the Home Secretary
to give evidence as to a breach of the peace by women suffragists ; the subpoenaed persons
were present on the occasion, but moved to set aside the subpoenas on the ground that they
were "wholly unable to give any evidence which can possibly be relevant " and that the
writs were served "for the purposes of vexation and to bring the defendants and their
agitation into further notoriety " ; held, that both the grounds set forth were in fact
true, that "therefore it would be an idle waste of time and money to require them to go
down to Leeds to give evidence," and that the subpoena should be set aside).
[Note 1, par. 3,1. 6; add:]
1905, Perry v. Rubber T. W. Co., 138 Fed. 836, C. C. (depositions; "the general rule is
that the witness should be required to answer all questions which may possibly be ma-
terial").
[Note 1, par. 3, at the end ; add:]
Distinguish also the judge's power to disallow any irrelevant question, under the modern
EngUsh and Canadian practice {ante, § 986, n. 11).
[Note 2.; add:]
1904, Rogers v. Superior Court, 145 Cal. 88, 78 Pac. 344 (grand jury ; privilege exists for
matters not pertinent). Cal. St. 1907, c. 395, p. 735, Mar. 20 (a witness must attend
"with any papers under his control lawfully required by the subpoena; and answer all
pertinent and legal questions" ; being C. C. P. § 2064 amended).
1905, Feinn x. Georgia R. & E. Co., 122 Ga. 280, 50 S. E. 103 (refusal to answer irrelevant
questions before a commissioner, privileged).
§ 2212. Trade Secrets and Customers' Names.
[Note 1, par. 1; add:]
Canada : Ont. St. 1905, 5 Edw. VII, c. 13, § 30 (factory-inspectors ; quoted post, § 2374,
n. 5) ; St. 1906, 6 Edw. VII, c. 11, § 78 (mining-inspectors, etc. ; quoted post, § 2374, n. 5) ;
St. 1906, 6 Edw. VII, c. 30, § 231 (railway board ; quoted post, § 2374, n. 5).
United States : la. : 1909, Finn v. Winneshiek Dist. Court, 145 la. 157, 123 N. W. 1066
(tax assessment; plaintiff's books held not privileged, on the facts).
525
§2212 SUNDRY PRIVILEGED TOPICS
[Note 1 — continued]
N. H.: 1910, Boston & Maine R. Co. v. State, 75 N. H. 513, 77 Atl. 996 (tax-abatement;
third person's private business, in general, not privileged ; here, the value of stock in trade).
U. S. : 1904, Herreshoff v. Knietsch, 127 Fed. 492, C. C. (rule for cross-examining to a
secret invention in an interference case, considered). 1904, Crocker- Wheeler Co. v. Bul-
lock, 134 Fed. 241, 245, C. C. (Cochran, J. ; "It should be accepted, therefore, as correct
law, that a witness should not be compelled to disclose trade secrets embedded in his head
or in documents in his possession, when their disclosiu'e will be prejudicial to him or his
company, and they are not relevant to the controversy in the suit or action in which he
is a witness, or otherwise admissible in evidence therein" ; applied to a claim made on sub-
poena d. t. in a suit on a contract for exchange of shares of stock). 1910, In re Grove,
3d C. C. A., 180 Fed. 62 (infringement of patent on engines for torpedo-boat destroyers ;
some of the documents being apparently material, the Coiirt ordered them to be produced
before the examiner, subject to later determination by the Court).
Va. : 1905, Worrell v. Kinnear, 103 Va. 719, 49 S.' E. 988 (damages for breach of contract
ordering the making of certain steel doors ; the cost of manufacture being in issue, ques-
tions as to the plaintiff's amount of business, fixed charges, etc., were held privileged, as
"unduly prying," on the suggestion that the sole business competitor of the plaintiff was
in collusion with the defendant).
[Nate 1, par. 4, 1. 2; add:]
For the privilege as to information acquired by a factory inspector, mine inspector, or rail-
way-commission, see post, § 2374.
For the question of privilege as to bankers, telegraphers, trustees, jourrMlists, etc., see
post, § 2286.
[Text, p. 3002, 1. 5, after "plain "; add a new note, la;]
P") The arguments of policy against fostering such secrecy are powerfully set forth,
from the point of view of the industrial scientist, by Mr. James Douglas, of New York,
in a paper entitled "Secrecy in the Arts" (Trans, of the American Institute of Mining En-
gineers, July, 1907).
§ 2215. Political Votes.
[Note 2; add:]
Br. C. St. 1903-4, 3 & 4 Edw. VII, c. 17, § 99 Oike Rev. St. 1897, c. 67, § 102) ; ib. § 160
(in proceedings where the scrutiny of ballots becomes necessary, "the mode in which any
particular elector has voted shall not be discovered until he has been proved to have voted
and his vote has been declared by a competent Court to be invalid").
Ala. St. 1911, No. 259, p. 249, Apr. 6, § 32 (primary elections; witness compellable "to
answer if he voted . . . and to answer touching his qualifications"; and if not qualified,
"he may be required to answer for whom he voted," with immunity from prosecution).
[Note 3; add:]
III. : 1909, Buckingham v. Angell, 238 111. 564, 87 N. E. 285.
Ky. : 1913, Vansant v. McPherson, 155 Ky. 34, 159 S. W. 630 (no privilege for a legal voter
casting a ballot illegal because cast after the lawful hour).
N. C. Rev. 1905, § 4407 (in election contests, "no witness . . . shall be excused from dis-
covering whether he voted at such election, . . . and if he was not a qualified voter, he
shall be compelled to discover for whom he voted").
[Note 5; add:]
Br. C. St. 1903-4, § 160 (quoted supra, n. 2).
1909, Buckingham s. Angell, 238 111. 564, 87 N. E. 285.
For statutes designed to take away this privilege by granting immunity, see post, § 2281.
526
SUNDRY PRIVILEGED TOPICS §2219
[Note 6 ; add, under Accord ;]
1906, State v. Matlack, 5 Pen. Del. 401, 64 Atl. 259 (misconduct of election officers in
misreading ballots at a primary election; waiver allowed).
1904, Lane v. Bailey, 29 Mont. 548, 75 Pac. 191 (good opinion by Callaway, C).
§ 2218. Party- Opponent: (a) Testimony on the Stand, etc.
[Note 3; aM:]
Man. St. 1906, 5 & 6 Edw. VII, c. 17, § 2 (amends Rev. St. 1902, c. 40, by adding further
details as Rules 402 A, 402 B, 407 B ; and by adding Rule 460 H, quoted ante, § 1890, n. 3).
Newf. St. 1904, c. 3, Rules of Court 28.
Yukon Consol. Ord. 1902, c. 17 (Judicature), Ord. XXI, RR. 200-224; St. 1904, c. 5, § 35.
Conn. vGen. St. 1902, §§ 710, 732-737 (reproduces Gen. St. 1888, §§ 1099, 1060-1062,
omitting the proviso that if discovery is obtained, testimony on the trial cannot be de-
manded).
III. St. 1905, May 18 (Municipal Court), §§ 32, 33.
la. Code 1897, §§ 3610, 3611.
N. C. Rev. 1905, §§ 865, 1351 (like Code 1883, §§ 580, 1630).
Okl: 1906, Re Wogan, 103 Mo. App. 146, 77 S. W. 490 (a party held compeUable to de-
pose, under the Oklahoma statutes).
[Note 6,1. 13; add:]
whether the provision that, on refusal to give testimony or deposition, the party's plead-
ing rnay be rejected and judgment entered, is constitutional : 1912, Miles v. Armour, 239
Mo. 438,, 144 S. W. 424 (applying Rev. St. 1909, §§ 6361, 6389).
1908, Hammond Packing Co. v. Arkansas, 212 U. S. 322, 351, 29 Sup. 380 (applying Ark.
Anti-Trust Act of 1905, § 9). ,
[Note 6 ; add a new paragraph 3 ;]
The statutes often provide that judgment may be taken against et party improperly refusing
to answer such interrogatories ; the validity of this provision has recently been doubted,
but without good ground, in Lawson v. Black Diamond C. M. Co., 44 Wash. 26, 86 Pac.
1120 (1906). Compare the similar rule ioT refusal to prodvxx documents {ante, § 1210, n. 2).
§ 2219. Same : (&) Production of Docimients.
[Note 6, par. 1 ; add:]
Man. St. 1906, 5 & 6 Edw. VII, c. 17, § 4 (amends Rev. St. 1902, c. 40, Rule 392, as to mode
of service, and Rule 421, as to penalty for refusal to produce).
Newf. St. 1904, c. 3, Rules of Court 28.
Yukon Consol. Ord. 1902, c. 17 (Judicature), Ord. XX, RR. 190-199.
Cmin. St. 1889, c. 22, Gen. St. 1902, §§ 732-737.
Ga. : 1904, Carrington v. Brooks, 121 Ga. 250, 48 S. E. 970 (Code applied). 1905, Macon
V. Humphries, 122 Ga. 800, 50 S. E. 986 (a production under order is a waiver of the right
to object to an improper order).
N. C. Rev. 1905, § 1656 (like Code 1883, § 578) ; Code 1883, § 1373, Rev. 1905, § 1657
(production on trial). 1906, Whitten v. Western U. Tel. Co., 141 N. C. 361, 54 S. E. 289
(telegram in possession of counsel on trial, compelled to be produced without prior notice,
under Code 1883, § 1373, Rev. 1905, § 1657).
[Note 8, 1. 1; add:]
1906, Banks v. Connecticut R. & L. Co., 79 Conn. 116, 64 Atl. 14 (under Gen. St. 1902,
§ 710, Gen. St. 1888, § 1099, cited ante, § 2218, n. 3, making an opponent compellable "as
527
§2219 SUNDEY PRIVILEGED TOPICS
[Note 8 — continued]
other witnesses," production of documents at the trial on motion is included ; and such pro-
duction at the trial is not "set about by the same limitations" as discovery of documents
before trial under Gen. St. 1902, § 732, Gen. St. 1888, § 1062, allowing discovery, in its
original phrasing, "as a court of equity might order" ; such production may be obtained
either by subpoena duces tecum or by motion for an order during trial ; good opinion by
Prentice, J.).
1911, American Lithographic Co. v. Werckmeister, 221 U. S. 603, 31 Sup. 676 ("subpoenas
duces tecum may run to parties as well as to others," and U. S. Rev. St. 1878, § 724, does
not alter this).
So also the original's production may be compelled jvithout subpoenas, if it is in court,
and the demandant is not relegated to secondary evidence :
1908, Kincaide v. Cavanaugh, 198 Mass. 34, 84 N. E. 307.
[Note 8, at the end ; add :]
Compare the reverse question, ante, § 2200, n. 10 (whether an order to produce on motion
is appropriate for a third person).
§ 2220. Same : (c) Corporal Exhibition.
[Note 2; add:]
1310, Batecoke v. Conlyng, Y. B. 3 Ed. II, No. 24 (dower; inspection of widow by judges
to determine age).
[Note 3 ; add, under England:]
1905, W. V. S., Prob. 231 (order of inspection made, but not obeyed).
For further details, see an article by Mr. D. M. Cloud, "Physical Examination in Di-
vorce," 35 Amer. Law Rev. 698 (1901).
[Note 5, par. 1 ; add:]
1906, SeaJboard Air Line R. Co. i. Scarborough, 52 Fla. 425, 42 So. 706 (ejection from a
train ; a witness for the defendant having testified that he saw a passenger ejected at the
time and place in question, the defendant requested that the plaintiff be produced in court
for identification, and the trial Court refused; held, that though the trial Court might
have discretionary power to do this, the defendant could have attained his purpose by pro-
cess of subpoena, and was not injured).
[NoteQ; add:]
Canada: Manit. St. 1906, 5 & 6 Edw. VII, c. 17, § 2 (similar to Ont. St. 1891, c. 11;
amends R«v. St. 1902, c. 40, by adding Rule 407 A).
Ont. St. 1910, 10 Edw. VII, c. 26, § 7 (inserting as § 1046 of the Judicature Act the above
Rule of Court § 462) ; St. 1913, 3-4 Geo. V, c. 19, § 70, Judicature Act (re-enacts the
foregoing).
United States : Ark. : 1914, Triangle Lumber Co. v. Acree, — Ark. — , 166 S. W. 958
(injury in a logging machine; rule applied).
Cal. : 1907, Johnston v. Southern P. Co., 150 Cal. 535, 89 Pac. 348 (personal injuries ; power
to order physical examination, afiirmed).
Colo. : 1908, Western Glass Mfg. Co. v. Schoeninger, 42 Colo. 357, 94 Pac. 342 (corporal
injury ; just before trial, the defendant demanded inspection by a physician ; the plaintiff
refused, on the ground that the lapse of 13 months since the time of injury made it un-
fair ; held, the trial Court erred in refusing the order for inspection ; model opinion, by
Maxwell, J., holding that the power exists, that the trial Court's discretion controls, that
prior request should be made, that the mode and conditions are determinable bythe Court,
and that on refusal the action may be dismissed or stayed). 1908, Denver C. T. Co. s.
628
SUNDRY PRIVILEGED TOPICS § 2220
[Note 9 — continued]
Roberts, 43 Colo. 522, 96 Pac. 186 (corporal injury; Western G. M. Co. v. Schoeninger
followed).
Hawaii: 1904, Fuller v. Rapid Transit Co., 16 Haw. 1, 12 (personal injuries; question not
decided ; but in any case the Court has discretion, and the request must be made before trial) .
1910, Campbell v. Hackfeld, 20 Haw. 245 (not decided ; here the plaintiff waived a prior
objection to an order for examination).
III.: 1879, Freeport v. Isbell, 93 111. 381, 385 (personal injury; the plaintiff was allowed
to be asked whether he would furnish some of his urine for chemical examination as to his
alleged kidney disease caused by the fall in question; "it was his duty" to produce this
"best evidence attainable," and his refusal was evidence against him). 1906, Richardson
«. Nelson, 221 111. 254, 77 N. E. 583 (personal injury ; the Court "has no power" to compel
the plaintiff to submit to a medical examination). 1907, Chicago v. McNally, 227 111. 14,
81 N. E. 23 (similar ; nor can the question be asked, whether the plaintiff is willing to sub-
mit to a physical examination). 1908, Pronskevitch v. Chicago & Alton R. Co., 232 111.
136, 83 N. E. 545 (personal injury ; the plaintiff having removed part of his clothes and
shown his injury to the jury, this entitled the defendant to an examination "under reason-
able restrictions" ; held that the plaintiff's refusal to be examined out of the jury's pres-
ence was not unreasonable). 1911, People v. Steward, 249 111. 311, 94 N. E. 511 (said
obiter that a statute might validly change the rule).
Kan. : 1904, Atchison, T. & S. F. R. Co. v. Pahnore, 68 Kan. 545, 75 Pac. 509 (injury to
the eyes; expert examination ordered). 1906, Dickinson «. Kansas C. E. R. Co. 74 Kan.
863, 86 Pac. 150 (Ottawa v. Gilliland followed).
Ky.: 1901, Louisville & N. R. Co. v. Simpson, 111 Ky. 754, 64 S. W. 733 (following Belt
E. L. Co. V. Allen). 1909, Keller & B. Co. v. Berry, — Ky. — , 121 S. W. 1009 (examina-
tion by physicians chosen by defendant, held properly refused). 1911, Illinois Central
R. Co. V. Beeler, 142 Ky. 772, 135 S. W. 305 (personal injury ; inspection ordered ; general
practice as laid down in Belt E. L. Co. v. Allen, affirmed).
Mont. : 1905, May v. Northern P. R. Co., 32 Mont. 522, 81 Pac. 328 (personal injury ; order
compelUng the plaintiff to submit to an examination by physicians appointed by the Court,
held properly denied, mainly on the ground of lack of judicial power, following the Massa-
chusetts Court ; full review of the cases and arguments in a careful opinion by HoUoway, J.).
Nev. : 1909, Murphy v. Southern Pacific R. Co., 31 Nev. 120, 101 Pac. 322 (power con-
ceded ; the trial Court's discretion to control).
Okl. : 1903, Kingfisher v. Altizer, 13 Okl. 121, 74 Pac. 107 (personal injury j plaintiff held
not compellable to submit before trial to an examination; U. P. R. Co. v. Botsford, U. S.,
followed as binding on the Territorial Court). 1913, Chicago, R. I. & P. R. Co. v. Hill,
36 Okl. 540, 129 Pac. 13 (not decided ; but Kingfisher v. Altizer, a Territory decision, is
held to be no longer binding). 1913, Atchison, T. & S. F. R. Co. v. Melson, 40 Okl. 1, 134
Pac. 388 (Kingfisher v. Altizer followed ; but this rule allows the party to be asked if he
will consent).
Tex ■ Austin & N. W. R. Co. v. Cluck, supra, aifirmed on appeal in 97 Tex. Sup. 172, 77
S. W. 403. 1905, Houston & T. C. R. Co. v. Anglin, 99 Tex. 349, 89 S. W. 966 (like C. R.
I. & T. R. Co. V. Langston).
U. S. : 1905, Denver C. "t. Co. v. Norton, 141 Fed. 599, 609 (personal injuries ; the inspec-
tion cannot be ordered, but the defendant may make the request and on refusal may com-
ment thereon). 1909, Chicago & N. W. R. Co. v. Kendall, 8th C. C. A., 167 Fed. 62 (rule
of Botsford case held not applicable where the plaintiff had waived the privilege by showing
his knees ; ruling more fully stated ante, § 6, n. 8).
Utah: 1908, Larson v. Salt Lake City, 34 Utah 318, 97 Pac. 483 (power denied, in the
absence of statute; the opinions are a singular exhibition of that judicial "non possumus"
attitude which is so blind to the true nature of law and judicial function).
Wash. : 1905, Helbig v. Grays' Harbor E. Co., 37 Wash. 130, 79 Pac. 612 (further examina-
tion by a thu-d physician, held not improperly refused).
529
§2220 SUNDRY PRIVILEGED TOPICS
[Note 9, at the end; add:]
In the Federal Congress (59th Cong., 2d Sess., 1907) a bill was reported by the House
of Representatives' Committee on Judiciary (H. R. 10, Report No. 7587, Feb. 9) " to au-
thorize the courts of the United States to require a party to submit to a personal physical
examination in certain cases " ; but was not passed.
The report of the majority of the Committee says :
" The object of this bill is to confer a discretionary power upon Federal courts to order
the plaintiff in actions brought to recover for personal injuries sustained to submit to a
personal physical examination. The enactment of the bill is made necessary by the opin-
ion of the court in Union Pacific Railway Company v. Botsford (141 U. S. 250) .... Under
this rule the Federal courts are not vested with any discretion whatever relative to such
examinations, and the defendant is left in practice to offer as a matter of evidence the
demand for an examination and its refusal by the plaintiff as reflecting upon the bona fides
of the plaintiff's claim as to the nature and extent of such injuries. But this denies the
defendant the equal opportunity with the plaintiff of calling a medical witness as to the
character of the injuries, and to that extent at least is an injustice. . . . The most recent
and exhaustive discussion of this subject is found in Wigmore on Evidence (1904), II, .
§ 2220, in which the case of R. Co. v. Botsford is thoroughly discussed by the author
[quoting]. . . . In view of the great weight of authority, . . . this bill is recommended
to for passage as amended."
The opposing report of the minority says, in part :
"In many personal-injury cases the real condition of the implement or agency alleged
to be defective is a matter of prime importance when the alleged defect is charged to be
the direct cause of the injury complained of. Then, if the party complaining on account
of any such defect and an injury attributed to it, is to be subjected before or at the trial
to a physical examination for the benefit of his adversary, why is it not also provided that
the thing, whatever it may be, alleged to be defective and by reason of the defect to have
caused the injury, should not, by Congressional enactment, be kept within easy reach,
unrepaired and unchanged, for the benefit of the sufferer from the personal injury ? But
nothing like that is proposed — this legislative scheme has no element of reciprocity in
it. For instance, a passenger may be injured, as he claims, by reason of a defect in the car
upon which he took passage. If this bill becomes the law he can be forced to submit to
a physical examination, either at or before the trial, at the instance and for the benefit of
the owner of the car, but the car may be taken at any time to the other side of the continent,
and may be repaired and changed, or even destroyed, at the will of its owner, the other
party to the controversy. It is not proposed to provide for preserving the status quo,
with full opportunity to the injured party to have examined that which caused his injury.
Then, not only men but women and children may be forced to submit to a physical exam-
ination for the benefit of an adversary. The 'discretion of the court' might be, and
sometimes surely would be, a sorry substitute for the right which this bill would take away
— the right to guard the afflicted body and the sensibilities from the unfriendly inquisi-
tion of a hired evidence seeker, not invariably learned, skillful, tender, respectful, or over-
scrupulous. The bill is predicated to some extent, it not wholly, upon the assumption
that the claimant on account of an alleged personal injury is lacking in honesty, and that
attending surgeons and physicians are incompetent or dishonest or both. Not even the
intemperate declaration of Wigmore, quoted with approval in the committee report, is at
least with the minority conclusive upon the 'fraud' item ... As to the cases and text
writers cited, we have not examined them, and so do not know how fully or to what ex-
tent they warrant any conclusions deduced from them by those who rejy upon them for
support for the proposed legislation."
The only new argument brought out in this minority report is that the plaintiff in such
cases is in fairness entitled reciprocally to an inspection of the defendant's chattels and
premises to ascertain the cause of the injury and the data of negligence. This point is
well taken. There ought to be no privilege on either side. But the simple answer is that
530
SUNDRY PRIVILEGED TOPICS § 2221
[Note 9 — continued]
in this view the minority should have insisted on adding such a provision to the bill. That
the minority report proposed no such thing suggests strongly that they were against the
bill on any terms.
Moreover, the report assumes that no such right of inspection is now in law available
for the plaintiff. Yet the authorities cited post, ,§ 2221, show that such a power has been
recognized in Chancery for a century, and that modern American courts of law are begin-
ning to recognize it in personal injury cases. How amply and naturally it is employed
in modern English Courts may be seen by consulting the notes to Order 50, Rule 3, in
Mackenzie & Chitty's " Yearly Supreme Court Practice."
[NoU 13; add:]
England (divorce cases) : W. v. W., [1912] P. 78 (nullity for impotency ; the respondent's
refusal to submit to medical examination, taken as evidence ; B. v. B. supra is not cited,
and counsel say "The nearest case is C. v. C, 1911, 27 Times L. R. 421 "; but in Dick-
inson V. Dickinson, [1913] P. 198, Sir S. Evans, Pres., declares it "revolting" to find that
where decrees were thus based on "inferred incapacity" the parties in later marriages have
had children, and he ruled that absolute refusal of intercourse was of itself a ground for
nuUity; hence the inference of impotency will hereafter not be a mere "legal fiction,"
as Sir S. Evans termed it).
United States (personal injury cases) : 1907, Cedartown v. Brooks, 2 Ga. App. 583, 59
S. E. 836 (careful opinions by Russell, J., and Powell, J., respectively, taking opposite views
as to the propriety of the inference in a jxuisdiction where the Court has power and' dis-
cretion to make an order).
1909, Murphy v. Southern Pacific R. Co., 31 Nev. 120, 101 Pac. 322.
1913, Chicago, R. I. & P. R. Co. v. Hill, 36 Okl. 540, 129 Pac. 13.
§ 2221. Same : (d) Inspection of Premises and Chattels.
[Note 2; add:]
The exhumation of a body, when useful to ascertain facts in litigation, should of course
be permitted ; no privilege ought to be recognized :
1907, Re Herbert Druce, Re London Cemetery Co. (Nov. 16, Dec. 27; London Times,
Nov. 9, 16, 19, 22, 28, 30, Dec. 3, 7, 10, 14, 17, 21, 28, 30, 31. The Druce Case was a case of
alleged double life. The claimant, Geo. HoUamby Druce, was the son of Thomas Charles
Druce, who had lived as a furniture dealer, and died in 1864. The claim was that T. C. D.
was in reality the fifth Duke of Portland; that in 1816, as Lord John Bentinck, he had
married Miss Crickmer, and had lived with her and maintained a household as Thomas
Charles Druce, while also living as the Duke of Portland, and that as Duke he survived till
1879; there was plausible testimony to these facts; in 1898-1901 Mrs. Anna Maria Druce
brought proceedings in the Probate Court to revoke probate of the will of T. C. D., on the
ground that T. C. D. had not then died, and that the funeral of T. C. D. in 1864 was a
mock one, and that T. C. D. in fact lived, as the Duke, till 1879; this suit was dismissed,
the Court finding that T. C. D. did die in 1864; at the 1898 proceeding, Herbert Druce,
son of T. C. D., and opposed to the claimant, had made affidavit, and in the 1901 pro-
ceeding he testified, that he had lived since his birth in 1846 with his father T. C. D.,
that in Sept. 1864 his father fell ill and on Dec. 28, 1864, died, that he saw his father's
body lying in the coffin, and saw the body buried at Highgate Cemetery; yet the testi-
mony for the claimant was explicit that the coffin had been specially made at the Duke's
order, and that only lead had been placed within, to deceive the bearers ; the test of this
story would evidently be the condition of the coffin, and at the 1898 proceedings by Mrs.
A. M. D. the judge of the Consistory Court, Dr. Tristram, intimated that he would grant
a license to open the coffin, and upon a prohibition moved in the Probate Court on the
531
§ 2221 PRIVILEGED TOPICS
[Note 2 — continued]
ground that the Home Secretary alone had jurisdiction, the prohibition had been refused,
conceding to the Consistory Court sole jurisdiction over the removal of bodies for re-
interment or other purposes (ruling reported in 1898, L. R. 2. Q. B. 371 ; citing In re Sarah
Pope, 15 Jut. 614, before Dr. Lushington) ; but now in 1907 the claim was indirectly got
before the Court again by a prosecution, instituted by Geo. H. D., against Herbert D.,
for perjury in his affidavit and testimony of 1901 ; new testimony was at this trial ad-
duced for the claimant, direct and conclusive, if true ; and the opening of the grave seemed
now to be the only way of testing the story; Herbert D., the proprietor of the grave, had
at first refused to allow it to be opened, but his counsel now declared himself ready to
consent; the magistrate, Mr. Plowden, expressed the opinion that the grave ought to be
opened ; H. D. assented and the Home Secretary gave a license ; and a petition was filed
in the Consistory Court by the London Cemetery Co. (including Highgate Cem.) and the
Home Secretary, for a license to open the grave ; no party seems to have opposed the order,
though each counsel made a speech explaining why he did not oppose it; Dr. Tristram
granted the order, to open the grave and "to examine and inspect the contents thereof,
and to ascertain whether such last-mentioned cofiin actually contains the human remains
of the said T. C. D. or any human remains," etc. ; on Dec. 30 the coffin, which was lead-
lined, was opened, and was found to contain " the body of an aged and bearded man" ; this
ended the prosecution of H. D. ; in the Law Journal, 1908,, Jan. 11, vol. XLIII, p. 15, is a
brief summary of the legal points arising at the trial, but the only reference to the ex-
humation is unfortunately erroneous, stating the ruUng to be that there is no judicial
authority to open a grave except for an inquest).
1907, Mutual Life Ins. Co. v. Griesa, C. C. Kan., 156 Fed. 398 (bill to cancel a life insur-
ance policy on the ground of intention to suicide; order of exhumation of the body, for
examination, granted, and privilege denied ; case stated more fully ante, § 1862, n. 6, and
2194, n. 6).
1910, Danahy v. Kellogg, 126 N. Y. Suppl. 444 (action for death ; order for exhumation
to ascertain the cause of death, denied ; case stated more fully ante, § 1862, n. 10).
1908, Gray v. State, 55 Tex. Cr. 90, 114 S. W. 635 (murder; to obtain evidence on the ac-
cused's allegation that he had shot the deceased in self-defence and not from behind, an
order of exhumation of the body was held improperly refused by the trial Court; model
opinion, by Ramsey, J., Brooks, J., diss. ; stated more fully ante, § 2194).
1914, State v. Clifford, — Wash. — , 139 Pac. 650 (exhumation of an intestate's body, to
ascertain whether castration had prevented paternity ; stated more fully anJte, § 2194, n. 6).
Compare the cases cited ante, § 2174, n. 6, and § 1862, n. 6.
[Notei; add:]
The use of such orders of inspection in modern English practice may be seen in Mack-
enzie Chitty's " Yearly Supreme Court Practice," notes to Order 50, Rule 3.
§ 2223. Facts involving a Civil Liability, etc. >
[iVoie 7, par. 2 ; add:]
Ont. St. 1904, 4 Edw. VII, c. 10, § 21 (similar; quoted post, § 2281).
[Note 9; add:]
1910, Boston & Maine R. Co. v. State, 75 N. H. 513, 77 Atl. 996 (general principle affirmed).
§ 2280. Husband or Wife ; Paramour ; Void Marriage.
[Note 1, last line; add:]
1905, State v. Hancock, 28 Nev. 300, 82 Pac. 95.
532
ANTI-MARITAL FACTS §2233
' [Note 2, par. 1 ; add ;]
1906, State v. Rocker, 130 la. 239, 106 N. W. 645 (murder ; defendant being already mar-
ried, the woman now living with him as wife was admitted against him).
§2231. Bigamous Marriage; Disputed Marriage.
[Note 2; add:] '
1905, Murphy v. State, 122 Ga. 149, 50 S. E. 48.
[Note 3; add:]
1905, Hoch V. People, 219 111. 265, 76 N. E. 356 ("If the first marriage is admitted or is
' clearly proved, the alleged second wife is competent," except as to the first marriage).
[Note 4; add:]
1906, State v. Rocker, 130 la. 239, 106 N. W. 645 (murder ; a woman living with defendant
as his wife, admitted against him, after evidence of his and of her former marriage to
another). i
§ 2232. Extrajudicial Admissions of Wife or Husband.
[Note 1; add:]
Accord: 1904, Halbert v. Pranke, 91 Minn. 204, 97 N. W. 976 (husband's petition in bank-
ruptcy, excluded).
1903, Baker v. State, 120 Wis. 135, 97 N. W. 566 (false pretences; defendant's husband's
admissions, excluded).
Contra: 1886, Cook v. State, 22 Tex. App. 511, 3 S. W. 749 (wife's acts and utterances as
a joint principal, admitted).
1905, State v. Mann, 39 Wash. 144, 81 Pac. 561 (arson by a husband as accessory to the
wife; the wife's confessions as principal, admitted against the husband).
[Note 4 ; add, under Accord :]
1904, Joiner v. State, 119 Ga. 315, 46 S. E. 412 (wife's statements of husband's cruelty, to a
third person in defendant's presence, admitted).
1904, People v. Hossler, 135 Mich. 384, 97 N. W. 754.
1908, State v. Wooley, 215 Mo. 620, 115 S. W. 417 (wife's written statement read aloud to
the husband and assented to by him, admitted ; distinguishing State v. Burlingame).
[Note 5 ; add :]
The privilege is here to be claimed when answer is offered, and not when the discovery
is first sought, if it is then demandable as from a party : 1904, Olmsted v. Edson, 71 Nebr.
17, 98 N. W. 415.
§ 2233. Hearsay ; Production of Documents.
[Note 1; add:]
But testimony obtained by information gained from the wife would not be privileged : 1905,
Com. V. Johnson, 213 Pa. 432, 62 Atl. 1064. Compare §§ 2261, 2325, post.
[Nate 2; add:]
1906, State v. Richardson, 194 Mo. 326, 92 S. W. 649 (spontaneous declarations).
Distinguish the following : 1906, People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384, 389
(perjury ; the wife's testimony at the former trial, admitted on the issue, of materiality).
533
§2235 PRIVILEGED TOPICS
§ 2235. Husband oiv Wife not a Party ; Sundry Applications of the Rule.
[Note 1; add:]
But otherwise where the proceeding is a bill against the wife herself, to set aside a convey-
ance from the husband : 1899, Re Fowler, 93 Fed. 417.
1905 Wiley v. McBride, 74 Ark. 34, 85 S. W. 84.
[Note 3 ; add, under Not Privileged:]
1904, Pruett v. State, 141 Ala. 69, 37 So. 343 (adultery ; husband of the woman with whom
it was charged, admitted).
1906, Hill V. Pomelear, 72 N. J. L. 528, 63 Atl. 269 (criminal conversation ; plaintiff ad-
mitted to prove the marriage, under Rev. Pub. L. 1900, p. 363, § 5).
1913, Powell V. Strickland, 163 N. C. 393, 79 S. E. 872 , (husband's suit for criminal conver-
sation; husband admitted to testify to the adultery of the wife not a party).
1905, State v. Nelson, 39 Wash. 221, 81 Pac. 721 (adultery of N. with S. ; the husband of S.
admitted against N. for the State).
[Note 4 ; add :]
1912, People v. Upton, 169 Mich. 31, 135 N. W. 108 (battery upon O., after O. had as-
saulted defendant's wife ; Mrs. O. admitted to testify for the defendant).
[Note 6; add:]
1913, Strauss v. Hutson, — Miss. — , 61 So. 594 (bill for discovery against husband and
wife charging fraud against creditors; neither compellable to answer).
1905, Weckerly v. Taylor, 74 Nebr. 772, 105 N. W. 254 (creditor's bill against the debtor,
his wife as assignee, and an insurer, to reach the proceeds of an accident policy ; the hus-
band not admitted for the plaintiff).
1893, Norbeck v. Davis, 157 Pa. 399, 405, 27 Atl. 712 (under St. 1887, P. L. 158, § 25,
P. & L. Dig. Witnesses, § 11, the wife is competent in interpleader proceedings as claimant
against a creditor).
1904, Re Domenig, 128 Fed. 146, D. C. (under Pa. St. 1887, supra, the wife is competent
in bankruptcy proceedings to prove her claim as creditor).
§ 2236. Same : Co-Indictees and Co-Defendants.
[Note 1; add:]
1908, Canole v. Allen, 222 Pa. 156, 70 Atl. 1053 (trespass done by husband and wife; the
husband held to be improperly called by the plaintiff to prove the husband's act as the wife's
agent).
[Note 2; add:]
1904, Graff v. People, 208 111. 312, 70 N. E. 299 (the wife of a co-indictee who had pleaded
guilty before trial, admitted against the defendant).
[Note 5 ; add :]
1913, Watson v. State, — Ala. -,-, 61 So. 334.
§ 2237. Testimony agrtiinst Husband or Wife Deceased or Divorced.
[Note 4; add:]
1906, State v. Mathews, 133 la. 398, 109 N. W. 616 (wife at the time of the homicide, but
divorced before trial; not privileged).
1903, Tompkins v. Com., 117 Ky. 138, 77 S. W. 712 (for occurrences subsequent to divorce;
but this limitation is unsound).
534
ANTI-MAKITAL FACTS § 2239
[Note 4 — continued]
1908, State v. Luper, — Or. — , 95 Pac. 811 (perjury committed in obtaining the divorce).
1905, Hartley v. Hartley, 27 R. 1. 176, 61 Atl. 144 (wife's bill for account against a divorced
husband ; plaintiff not allowed to testify to a property agreement made during marriage ;
erroneously following Robinson v. Robinson, R. I., post, § 2341, as authority).
1905, Cole V. State, 48 Tex. Cr. 439, 88 S. W. 341.
1905, State v. Nelson, 39 Wash. 221, 81 Pac. 721.
[Text, p. 3055, at end ; add:]
A deponent's qualifications should be determined at the time of the deposi-
tion's taking, not of the deposition's offer in evidence {ante, §§ 483, 1409). But
a privilege should be determined at the time of its claim ; for the basis of a
disqualification is the testimonial trustY'^orthiness of the person when actually
speaking, while the basis of the privilege is the policy as affected by using the
testimony. Hence, if a husband's deposition is taken at a time when the
wife could be privileged to exclude it, nevertheless the privilege becomes
unavailable if, by death or divorce intervening before offer of the deposition,
the privilege has ceased at the time of the offer.*
' 1912, Howard v. Strode, 242 Mo. 210, 146 S. W. 792 (claim of widow's share in an
estate; the plaintiff was married in 1883 to a man named H. H., whom she maintained
to be the defendant's intestate L. J. H. ; defendant maintained that the man married by
the plaintiff in 1883 was not L. J. H., but was one T. J. M. ; defendant offered the deposi-
tion of T. J. M., a non-resident, that he was that man, and therewith offered a decree of
divorce from plaintiff granted to said T. J. M. since the date of the deposition and before
its offer in evidence ; the trial Court admitted the deposition ; held that the divorce made
T. J. M.'s testimony admissible).
§ 2239. Testimony admitted Exceptionally ; At Common Law, by Necessity.
[Note 4 ; add :]
1907, Williams v. State, 149 Ala. 4, 43 So. 720 (assault by a woman on her former hus-
band; husband admitted).
1904, State v. Harris, 5 Pen. Del. 145, 58 Atl. 1042 (husband admitted against his wife, on
a charge of assaulting him).
1912, Ector V. State, 10 Ga. App. 777, 74 S. E. 295 (under P. C. 1910, § 1037, par. 4, re-
producing P. C. 1895, § 1011, par. 4, the husband may not testify against his wife on a
charge of stabbing him ; history of the legislation reviewed by Russell, J.).
1913, State v. Anderson, 252 Mo. 83, 158 S. W. 817 (assault with intent to kill the accused's
wife; the wife admitted).
1907, Miller v. State, 78 Nebr. 645, 111 Nebr. 637 (wife admitted on a charge of hus-
band's assault on herself and two others).
1905, State v. Woodrow, 68 W. Va. 527, 52 S. E. 545 (murder of defendant's baby, the
shot passing through the baby's head and wounding the mother who was holding it in
her arms; the mother excluded ; a singular decision ; Poffenbarger and Sanders, JJ., diss.).
[Note 9, 1. 5; add:]
1905, Frazier v. State, 48 Tex. Cr. 142, 86 S. W. 754 (useless opinion).
[Note 9, 1 9; add:]
1904, State v. McKay, 122 la. 658, 98 N. W. 510 ("this is so plain that no amount of rea-
soning can make it any clearer").
535
§2239 PEIVILEGED TOPICS
[Note 9 — continued]
1913, Norman v. State, 127 Tenn. 340, 155 S. W. 135 (rape under age of a woman whom
defendant subsequently married so as to shield himself from prosecution; privilege held
applicable ; careful opinion, by Buchanan, J., but the result is none the less misguided).
\NoU 11; add:]
In various phrasings of law as to piiwping by the husband (living on the wife's earnings as
prostitute, enticing her for the purpose of prostitution, contracting for the purpose, "white
slave trade"), the question of the privilege arises; the local statutory phrasings become
important, but of course morally it is a shameless offence against wifehood :
Director of Pub. Pros. ii. Blady, [1912] 2 K. B. 89 (charge of living on the earnings of his
wife as prostitute ; the wife held not admissible for the prosecution, because the offence
was not against " the liberty, health, or person of the wife " ; Lush, J., diss. ; the reasoning
of the majority might have been different and sound, but, upon its own phrasing, the Eng-
lish language is strangely interpreted).
Ind. St. 1911, c. 174, p. 439, Mar. 4 (pandering; cited more fully ante, § 488); 1911,
U. S. V. Rispoli, 189 Fed. 271 (prosecution of the husband for persuading his wife to act
as a prostitute (" white slave " trade), held that the privilege ceased).
[Note 12; add:]
Ala. St. 1903, No. 9, p. 32 (husband charged with abandonment; "the wife shall be a
competent witness against her husband").
1905, Wester v. State, 142 Ala. 56, 38 So. 1010 (abandonment of family ; the wife allowed
to testify for the State, under St. 1903, No. 9).
1902, State v. Miller, 3 Pennew. Del. 518, 52 Atl. 262 (under St. 1887, c. 230, 18 Laws,
p. 447, quoted anie, § 488, a wife is admissible on a complaint against the husband for failure
to support minors even when not under the age of ten).
1904, State v. Bean, 104 Mo. App. 255, 78 S. W. 640 (wife-abandonment; the wife ad-
mitted against the husband). 1869, State v. Newberry, 43 Mo. 429 (wife-abandonment;
the wife's affidavit to an information, admitted).
1905, Morgenroth ®. Spencer, 124 Wis. 564, 102 N. W. 1086 (Bach v. Parmely followed).
For the numerous modern statutes so providing, see ante, § 488.
[Note 13, par. 1 ; add ;]
1913, Hunter v. State, — Okl. Cr. App. — , 134 Pac. 1134 (failure to support a minor
child; the wife admitted, under E«v. L. 1910, § 5882, making an exception for "a crime
committed by one against the other" ; eloquent opinion by Furman, J.).
For the numerous modern statutes expressly so providing, see ante, § 488.
[NoU 14, line 3; add:]
Accord: 1885, Lord v. State, 17 Nebr. 526, 23 N. W. 507.
Not decided: 1905, State v. Nelson, 39 Wash. 221, 81 Pac. 721.
[Nate 15 ; add :]
Accord: 1891, Owens v. State, 32 Nebr. 174, 49 N. W. 226 (incest).
1907, Harris v. State, 80 Nebr. 195, 114 N. W. 168 (rape under age, on the defendant's
stepdaughter; the wife admitted).
[Note 16; add:]
Accord: La. St. 1904, No. 41. 1906, Richardson v. State, 103 Md. 112, 63 Atl. 317 (but
under a broad statute. Pub. Gen. L. 1904, art. 35, § 4).
Contra: 1906, State v. Kniffen, 44 Wash. 485, 87 Pac. 837.
536
ANTI-MARITAL FACTS § 2242
[Note 20; add:]
Not admissible: 1905, Bishop v. Bishop, 124 Ga. 293, 52 S. E. 743 (in divorce for adultery,
under Code § 5272, the husband and wife are disqualified, and in a proceeding for alimony
pending suit for divorce for desertion, neither may testify to the other's adultery). 1913,
Anderson v. Anderson, 140 Ga. 802, 79 S. E. 1124 (wife's suit for divorce for cruelty, with a
cross-libel for adultery ; the wife allowed to testify in support of her bill, but not in denial
of the cross-bill ; this case illustrates the absurd technicalities of the patchwork statutory
treatment of this privilege).
Admissible: 1904, Schaab v. Schaab, 66 N. J. Eq. 334, 57 Atl. 1090 (under St. 1900,
c. 150, §§ 2, 5, a wife may testify for her husband in an action for divorce for adultery, but is
not compellable).
Compare the cases on divorce cited post, § 2245, n. 5.
[Note 23 ; add, under Contra :]
1912, Molyneux v. Willcockson, — la. — , 137 N. W. 1016 (forgery by the husband of money
obligations in the wife's name ; the exception held not applicable).
§ 2240. Same : Under Statutory Exceptions.
[Note 2; add:]
1906, Heckman v. Heckman, 215 Pa. 203, 64 Atl. 425 (neither is competent under Pa. St.
1893, P. L. 345, in a suit in equity for reconveyance of the wife's separate estate).
[NoteS; add:]
1904, First Nat'l Bank v. Wright, 104 Mo. App. 242, 78 S. W. 686.
[Note 5, \. 9; add:]
1907, Rust V. Oltmer, 74 N. J. L. 802, 67 Atl. 337 (P. L. 1900, p. 363, Evidence, § 5, held
not to exclude the wife's testimony on a count for alienation of affections).
§ 2241. Whose is the Privilege.
[Note 3; add:]
1904, Com. V. Barker, 185 Mass. 324, 70 N. E. 203 (under Rev. L. 1902, c. 175, § 20, the
wife may voluntarily testify against the husband in a criminal case).
[Note 5; add:]
1911, State V. Stewart, 85 Kan. 404, 116 Pac. 489 (holding only that the party's counsel
may properly request or suggest to the judge that the husband-witness be informed of the
privilege ; whether the party may take advantage of an erroneous denial of the privilege,
not decided).
§ 2242. Waiver of the Privilege.
[Note 1 ; add :]
1903, Davis v. State, 45 Tex. Cr. 292, 77 S. W. 451.
[Note 5 ; add :]
1906, People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384, 389 (but a failure to object at a
former trial is not a waiver for a subsequent trial).
1913, Hunter v. State, — Okl. Cr. App. — , 134 Pac. 1134.
537
§2242 PRIVILEGED TOPICS
[Note 6; add:]
The husband's own testimony to his wife's statements, in an issue where she is virtually
an opposed party in interest, ought to be a waiver of the privilege, because in fairness she
should have an opportunity to deny or explain.
Contra: 1910, Fuller v. Robinson, 230 Mo. 22, 130 S. W. 343 (alienation of affections).
[Note 8, par. 1 ; add:]
1907, Jones v. State, 51 Tex. Cr. 472, 101 S. W. 993 (Hoover v. State followed).
§ 2243. Inference from Exercise of the Privilege.
[Note 1 ; add, under Accord :]
1910, Dickman's Case, 5 Cr. App. 135 (under St. 1898, 61-2 Vict. c. 36, § 1, 6).
1903, R. V. Hill, 36 N. So. 253 (following R. v. Corby, supra, even where the defendant's
counsel had already introduced the subject by explaining the wife'^ absence).
1906, Mash v. People, 220 111. 86, 77 N. E. 92 (prosecuting counsel's argument drawing an
inference from the wife's claim, held to have been here excused by the defendant's counsel's
prior similar impropriety).
1912, Fannie v. State, 101 Miss. 378, 58 So. 2 (Johnson v. State followed).
1905, State v. Shouse, 188 Mo. 473, 87 S. W. 480.
1905, State v. Taylor, 57 W. Va. 228, 50 S. E. 247 (like Johnson v. State, Miss.).
[Note 1 ; add, under Contra :]
1912, Com. V. Spencer, 212 Mass. 438, 99 N. E. 266 (defendant's failure to call his wife,
held open to comment; like People v. Hovey).
1909, Rhea v. Territory, 3 Okl. Cr. 230, 105 Pac. 314 (where by law the defendant's wife
may testify for him but he is privileged not to let the prosecution call her against him, the
Court may tell the jury that the prosecution has no power to call her but that the defend-
ant has, to prevent any inference from being drawn against the prosecution ; and an in-
ference may be drawn against the defendant).
1906, McMichael v. State,— Tex. Cr. — , 93 S. W. 723 (wife an eye-witness).
The following ruling seems correct: 1907, State v. Brown, 118 La. 373, 42 So. 969
(statement by the prosecuting attorney that the defendant's wife could testify neither
for nor against the accused, held not improper).
§ 2245. Statutory Abolition, Express or Implied.
[Note i; add:]
1904, Chaslavka v. Mechalek, 124 la. 69, 99 N. W. 154 (rule of Richards v. Burden applied
to a wife's and a husband's admissions).
Contra: 1904, Lenoir v. Lenoir, 24 D. C. App. 160, 165 (said obiter that Code 1901, § 1068,
quoted ante, § 488, does not make the parties competent in a divorce case, thus preserving
the rule of Burdette v. Burdette, 13 D. C. 469, infra, n. 7, and Bergheimer v. Bergheimer;
17 D. C. App. 381, in spite of the subsequent broad language of Code 1901 ; this result is
unsound also as a matter of legal reasoning, for the Court mistakes the rule of Code 1901,
§ 964, quoted ante, § 2067, n. 10, to have some effect in disqualifying the parties, instead of
merely requiring corroboration).
1905, Bishop v. Bishop, 124 Ga. 293, 52 S. E. 743 (divorce for adultery, and testimony to
adultery in a proceeding for alimony pending suit for divorce for desertion).
[Note 8; add:]
1909, Ex paHe Beville, 58 Fla. 170, 50 So. 685 (habeas corpus for a wife committed for
refusing to testify before the grand jury against her husband, on a matter not involving
538
ANTI-MARITAL FACTS §2250
[Note 8 — continued]
a crime against her person nor a marital communication ; held compellable, under Rev.
St. 1892, § 2863, and St. 1891, c. 4029, as heretofore interpreted ; "the statute that removed
the disqualification removed the privilege also" ; careful opinion by Parkhill, J. ; Whitfield,
C. J., and Shackleford, J., diss.). '
But not a statute abolishing "any disqualification known to the common law" :
1909, U. S. V. Meyers, 14 N. Mex. 522, 99 Pac. 336 (one judge diss.).
[Noted; add:]
1911, Acaster's and Leach's Case, 7 Cr. App. 84 (under St. 1898, 61-2 Vict. c. 36, § 4, the
■wife of a defendant is compellable, without her consent, to testify ; statutes carefully ex-
amined, in a convincing opinion by L. C. J. Alverstone) ; reversed on appeal in Leach v.
Rex, [1912] A. C. 305, 7 Cr. App. 157 (construing St. 1898, 61-2 Vict. c. 36, § 4, "the wife
or husband . . . may be called as a witness" etc.; wife held not compellable). On this
topic, under modern English statutes, see the learned pamphlet of Herman Cohen, Esq.,
of the Inner Temple, " Spouse- Witnesses in Criminal Cases " (London, 1913) ; the preface
says, "This little essay owes its origin to the argument of the Solicitor-General and Mr.
(now Mr. Justice) Rowlatt in Leach's Case."
1913, R. V. Allen, N. Br. S. C, 14 D. L. R. 825 (wife not admissible against her husband,
even though she consents, on a charge of obtaining money by false pretences).
1908, State v. Orth, 79 Oh. 130, 86 N. E. 476 (father's refusal to support children ; mother's
testimony held not admissible against him in a criminal case).
[Note 10; add:]
1903, Gosselin v. King, 33 Can. Sup. 256, 263 (under Can. Evidence Act 1893, c. 31, § 4,
the husband or wife of the accused is both admissible and compellable to testify for the
prosecution against the accused; Mills, J., diss.).
1906, Richardson v. State, 103 Md. 112, 63 Atl. 317 (under Pub. Gen. L.1904, art. 35, § 4,
the husband or wife is admissible for the prosecution, though not compellable).
1913, State v. Nieburg, 86 Vt. 392, 85 Atl. 769.
[Note 11; add:]
1904, Reed v. R«ed, 70 Nebr. 775, 98 N. W. 76 (property rights).
[Note 12; add:]
1911, Harris ^i. Brown, C. C. A., 187 Fed. 6 (Gen. St. 1909, Kansas, § 5915, C. C. P. § 321,
held to abolish all marital incompetency except for marital communications).
§ 2250. Self-Crimination ; History of the Privilege.
[Text, p. 3070, 1. 2 from below :]
For "obstante," read "obtenta," as in I. 9 of note 18, infra. This correction
is due to the courtesy of Mr. Justice Holmes.
[Note 26, col. 1, 1. 5 from below; add:]
SalvioU, " Manuale di storia di diritto italiano, " 1903, 4th ed., §§ 390-393 ; Esmein, " His-
tory of Continental Criminal Procedure " (transl. Simpson ; Continental Legal History
Series, vol. V, 1913), pp. 79 ff.
[Note 43, par. 2, p. 3078; add:]
It should be added that the peculiar stronghold of Chancery practice, its personal examina-
tion on oath to make discovery, is found established as early as the first part of the 1400 s,
and that the opposition which went on during that century and the 1500 s to the increasing
539
§2260 PRIVILEGED TOPICS
[Note 43 — continued]
spread of the Chancellor's powers was probably due in part to this feature of its procedure,
in which "the Chancery was naturally identified with the Church" and its methods with
those of the Ecclesiastical arid Star Chamber courts (1890, Kerly, " Historical Sketch of
the Equitable Jurisdiction of the Court of Chancery," pp. 43-45).
[Note 107, par. 1 ; add:]
Esmein, " History of Continental Criminal Procedure" (transl. Simpson ; Continental
Legal History Series, vol. V, 1913), pp. 224 ff.
[Note 108, par. 4; add:]
A summary of the early constitutional legislation on the privilege is found in the opinion of
Moody, J., in Twining ». New Jersey, 211 U. S. 78, 29 Sup. 14 (1908).
§ 2251. Policy of the Privilege.
[Note 1, add:]
Professor Henry T. Terry's article in the Yale Law Journal, XV, 127 (1906), "Consti-
tutional Provisions against Forcing Self-incrimination."
[Note 16, ocM;]
The correct moral attitude toward the privilege has been well illustrated in a courageous and
clear-thinking opinion, rendered in a case where outrageous fraud had been used at an
election :
1907, Lassing, J., in SchoU v. Bell, 125 Ky. 750, 102 S. W. 248 : "The testimony shows many
outrages and crimes done by the police, and yet, when these men were placed on the wit-
ness stand and interrogated as to what they knew, they invariably sheltered under the law
forbidding self-incrimination; and, when the question as to whether the witness should
or not be compelled to answer was certified to the chancellors, the witnesses were always
protected by the ruling. Assuming the ruUng to be correct, the conclusion which seems
to have been drawn as to the innocence of the ofiicers is not justified. The principle under
discussion is a rule of evidence, to protect the witness from criminal prosecution or public
exposure to shame because of his own testimony. It is a rule of necessity, beyond which
it should not be extended. Its use should not be considered as affording the witness a cer-
tificate of good character. Here were police officers being interrogated as to existence of
crimes they were paid to prevent, if possible; if not, to expose and punish afterwards;
and yet they one and all refused to answer 'under advice of counsel.' Suppose a secret
murder had been committed, and the police on that beat, when asked about it, should say,
'I decline to answer for fear of incriminating myself.' This, under the rule invoked, would
protect the witness from answering; but how long would it justify his retention on the
roll of the police ? What would be thought of those who left the public safety in his hands
longer than it would' require to discharge him? Suppose a bank had been robbed, and
the bookkeeper, the teller, and cashier, when interrogated, should say, 'I decline to answer
under advice of counsel.' What would be thought of a board of directors who would after-
wards leave the bank in the hands of such men? This is precisely the situation here.
Peace ofiicers, whose duty it was to prevent and expose crime, when called on to do so,
sheltered under the rule against self-incrimination ; and yet these men still wear the official
uniform, still draw salaries from the public piu-se, and this is made possible only by the
consent of those who are the apparent beneficiaries of their silence."
[Note 18; add:]
A reaction against the excesses of the privilege is now to be seen, notably in Wisconsin :
Herbert R. Limburg, " The Privilege of the Accused to Refuse to Testify" (American Academy -■
540
SELP-CRIMINATION § 2252
[Note 18 — continued]
of Political and Social Science, Phila., 1914, vol. LII, No. 141, p. 124) ; Wisconsin Branch
of the American Institute of Criminal Law and Criminology, Report of Committee approv-
ing a Bill for a Constitutional Amendment (2d Annual Meeting, 1910, Journal of Criminal
Law, etc., I, 808 ; 3d Annual Meeting, 1911, Journal of Criminal Law, etc., II, 870).
§ 2252. Constitutional and Statutory Phrasings, etc.
[Note 3; add:]
Eng. St. 1904, 4 Edw.'VII, c. 15, § 12 (cruelty to children; quoted ante, § 488). S. v.
S., [1907] p. 224 (divorce by a wife for impotency ; cross-bill by the husband for adultery ;
cross-examination of the wife as to adultery with the co-respondent, held not allowable,
under St. 20-21 Vict. c. 85, § 43, and 32-33 Vict. c. 68).
Lewis V. Lewis, [1912] P. 19 (similar).
Alta. St. 1910, 2d sess. c. 3, Evidence Act, § 8 (like Eng. St. 1869, 32-33 Vict. c. 68, § 3,
except that instead of applying to any witness, it applies to "the husband or wife, if com-
petent only under this Act")".
Ont. St. 1904, 4 Edw. VII, c. 10, § 21 (amends Rev. St. 1897, c. 73, § 5; quoted post,
§ 2281).
Yukon St. 1904, c. 5, § 37 (like N. Sc. Rev. St. 1900, c. 163, § 37).
N. Mex. Const. 1910, Art. II, § 15 ("to testify against himself in a criminal proceeding").
[Note 3 — continued.]
N. J. : 1905, State v. Miller, 71 N. J. L. 5,27, 60 Atl. 202 (State v. Zdanowicz approved).
N. C. Rev. 1905, § 1635 (like Code 1883, § 1354).
The statutes carrying out these provisions usually occur in connection with clauses
qualifying the accused to testify, and will be found ante, § 488.
The Federal Amendment of course applies in Federal trials only ; 1905, Ex ■parte Munn,
140 Fed. 782 (the Federal Fifth Amendment cannot be invoked by one committed by a
State court for refusal to answer).
But whether the U. S. Const. 14th Aniendment made the provisions of the 5th Amend-
ment in the present respect a privilege and immunity of citizens of the United States so as
to be protected and reviewable by the Federal Supreme Court, as against a violation by the
State, was for a while expressly left undecided.
1904, Adams v. New York, 192 U. S. 585, 24 Sup. 372.
1908, Consolidated Rendering Co. v. Vermont, 2p7 U. S. 541, 28 Sup. 178. But it has now
been settled that the privilege is not included in the guarantees of the U. S. Const. Four-
teenth Amendment. *
1908, Twining v. New Jersey, 211 U. S. 78, 29 Sup. 14 (indictment for exhibiting to a bank
examiner a false paper, namely, a record of a directors' meeting showing the defendants
T. and C. to be present, etc. ; the judge charged the jury that C.'s failure to take the stand
to deny the testimony that they were present, etc., might be considered for the purpose
"of drawing an inference of guilt" ; the Federal Court held, in an opinion by Moody, J.,
(1) that the law of New Jersey, as there judicially construed, "permitted such an inference
to be drawn"; (2) that the U. S. Const. Amendment V was not operative for State law;
(3) that under the U. S. Const. Amendment XIV, preserving the "privileges and immunities
of citizens of the U. S." against impairment by State law, the privilege against self-crimina-
tion was not included ; (4) that it was also not included in the same Amendment's guaran-
tee of "due process of law" ; the opinion contains a careful summary of the legislative his-
tory of the privilege in the Colonies ; Harlan, J., diss.).
[NoU6; add:]
1911, Com. V. Cameron, 229 Pa. 592, 79 Atl. 169 semble.
541
§2252 PRIVILEGED TOPICS
[Note 8; add:]
1913, Karel v. Conlan, 155 Wis. 221, 144 N. W. 266 (civil action for damages based on
criminal conspiracy to libel — whatever that may mean ; privilege sustained ; but it is
incomprehensible how the Court was induced to spend eight pages discussing as arguable
such an elementary question, never judicially doubted for a century; it will not do for
courts to re-open settled questions whenever ignorant or daring counsel stir up a dust by
citing a score of irrelevant cases ; note, too, that the opinion misunderstands the point ruled
in People v. Kelly, N. Y., in stating that it held the privilege not applicable to a witness
who was not a defendant ; the Kelly case involved the effect of an immunity statute, as
may be seen from the quotation post, § 2282).
[Note 10; add:]
Except for criminal contempt : 1912, Merchants' S. & G. Co. v. Board of Trade, 8th C. C.
A., 201Fed. 20,28 ("Itmaybesafely said thatthereisnocasewhere . . . the Fifth amend-
ment applies except where the contempt charged also constitutes a crime"; hence, the
defendant may be examined, so long as he is not required to criminate himself otherwise
than as being in contempt).
[Note 11, par. 1 ; add:]
1911, B^ntler v. Com., 143 Ky. 503, 136 S. W. 896.
1909, State v. Naughton, 221 Mo. 398, 120 S. W. 53.
1913, State v. Cox, 87 Oh. 313, 101 N. E. 135.
1913, Scribner v. State, 9 Okl. Cr. 465, 132 Pac. 933 (Okl. Const. Bill of Rights § 27 applies
to testimony before a grand jury).
1911, Com. V. Bolger, 229 Pa. 597, 79 Atl. 113 (testimony before grand jury ; the defendant's
offer held not explicit enough in its statement of the alleged violation of the privilege).
1905, Re Hale, 139 Fed. 496, 5Q0, C. C. 1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370.
[Note 11, par. 2; add:]
1913, People v. Bladek, 259 111. 69, 102 N. E. 243.
1910, Holt V. U. S., 218 U. S. 245, 31 Sup. 2.
§ 2254. Kinds of Facts protected ; Civil Liability.
[NoU2; add:]
For the peculiar statutes in Canada (Dominion and Ontario), abolishing the privilege as to
civil liability in certain cases, see ante, § 2223, n. 7.
§ 2256. Criminal Liability ; (a) Forfeiture.
[NoU8; add:]
Whether deportation proceedings are criminal has not yet been finally settled : 1903, U. S.
V. Hung Chang, 126 Fed. 400, 405 (deportation of a Chinese ; the person arrested for depor-
tation is not compellable to testify). 1904, Ark Foo v. U. S., 128 Fed. 697, 63 C. C. A.
249, semble (similar). ' 1904, U. S. v. Hung Chang, 134 Fed. 19, 25, 67 C. C. A. 93 (deporta-
tion of aliens is not a criminal proceeding ; the respondent alien's refusal to testify may be
the subject of inference against him). 1906, Low Foon Yin v. U. S., 145 Fed. 791, C. C. A.
(proceedings for deportation of an alien are not criminal, so as to privilege the defendant).
1906, Low Chin Woon v. U. S., 147 Fed. 727, C. C. A. (Low Foon Yin v. U. S. followed).
[Note 8; add:]
-1908, U. S. V. Tom Wah, D. C. N. D. N. Y., 160 Fed. 207 (Low Foon Yin v. U. S. fol-
lowed; the opinion remarks : "This precise question has been passed upon ... in Fong
Yue Ting v. U. S. " ; but quaere this statement).
542
SELF-CRIMINATION § 2258
[Note 10; add:]
1904, Attorney-General v. Toronto J. R. Club, 7 Ont. L. R. 248 (proceeding to revoke a
club's charter and enjoin its continuance, for maintaining a betting-house; discovery re-
fused, a forfeiture being involved).
[Note 11; add:]
1897, Earl of Mexborough v. Whitwood U. D. Council, 2 Q. B. Ill (privilege applied, in
an action for forfeiture of a lease by breach of covenant against underletting ; Pye v. But-
terfield followed).
1904, Miller v. Commissioners, L. R. 2 Ire. 421 (conditional limitation, and forfeiture,
distinguished).
But note that in Canada, under the statutes quoted post, § 2281, n. 5, abolishing the
privilege in part, by the immunity method, the privilege is held to be no longer applicable
to prevent discovery in civil cases involving penalties and forfeitures.
§ 2257. Same : (6) Penalty.
[Note 3; add:]
1892, Boyle v. Smithman, 146 Pa. 255, 274, 23 Atl. 397 (action to recover penalties for not
posting a statement of business done, under a statute declaring that the defendant "shall
forfeit and pay" one thousand dollars for each act; privilege applied).
[Note 4, add a new par. :]
Contempt:' 1909, Hammond Lumber Co. v. Sailors' Union, C. C. N. D. Cal, 167 Fed. 809,
823 (a proceeding to punish for contempt of an injunction is a criminal proceeding, for the
purposes of a claim of this privilege; cases collected).
[Note 6; add:]
1913, Karel v. Conlan, 155 Wis. 221, 144 N. W. 266 (libel ; cited more fully ante, § 2252, n. 8).
[Note 8; add:]
1881, Horstman v. Kaufman, 97 Pa. 147 (discovery by a plaintiff in execution against a
defendant for fraudulent concealment of property, refused, the conduct being a misdemeanor) .
[Note 10, par. 1 ; add :]
1906, Patterson v. Wyoming Valley District Council, Pa. Super; Ct. (appeal dismissed with-
out an opinion, confirming the decision of Head, J., published in advance sheets of 78 N. E.
Rep., Oct. 19 ; in an attachment for contempt in the violation of an injunction against a
boycott by a labor union, the production of the defendant's books was held not within the
privilege).
1907, Cassatt v. Mitchell C. C. Co., — C. C. A. — , 150 Fed. 32, 44 (whether in a civil
action against a carrier for damages under U. S. St. 1887, c. 104, Feb. 4, § 8, the criminality
of the same conduct under ib. § 10 allows the privilege to operate; not decided).
§ 2258. Crime imder Foreign Sovereignty.
[Note 3; add:]
1913, Buckeye Powder Co. v. Hazard P. Co., Conn. D., 205 Fed. 827 (State law of criminal
libel).
[Note 4:; add:]
1903, People v. Butler St. F. & I. Co., 201 111. 236, 66 N. E. 349 (cited posf § 2281, n. 11).
1904, State v. Jack, 69 Kan. 387, 76 Pac. 911 (Kansas anti-trust law; the witness claiming
543
§2268 PRIVILEGED TOPICS
[Note 4 — continued]
that his business involved also interstate commerce, it was held that " the possibility that his
answers might disclose violations of the Federal anti-trust law" was not a "real and prob-
able danger," following Brown v. Walker, U. S.)-
The doctrine of Brown v. Walker, tliat there must be a "real and probable danger" has
since been thus developed : 1905, Jack v. Kansas, 179 U. S. 372, 26 Sup. 73 (information
under the Kansas anti-trust act, in the Kansas District Court; held that the possibility
that answers might be given which might also incriminate him under the Federal anti-trust
act was too remote, the Kansas Court having ruled that matters constituting a violation
of the Federal act would be immaterial in the proceeding in question ; two judges dissenting ;
in this case, however, it would seem that the Federal Court erred in assuming, as it did, that
under the U. S. 14th Amendment the witness should be protected from the Kansas Court
even if there was a "real danger" of Federal prosecution). 1905, Ballmann v. Fagin, 200
U. S. 186, 26 Sup. 212 (a witness in a Federal Court refused to produce a book, and made
the claim that it would criminate him either under the Federal bucket-shop act, Rev. St.
§ 5209, or under the Ohio bucket-shop act, alleging that several charges under the latter
act were pending; held privileged, on the authority of Jack v. Kansas, supra; two judges
dissenting). 1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370 (anti-trust law ; that a Federal
immunity-statute would not protect a witness from possible prosecution under a State law
in a State court is immaterial ; approving King of Sicilies v. Wilcox, supra, n. 3, and dis-
tinguishing U. S. V. Saline Bank, supra, n. 3).
§ 2259. Crime of a Third Person ; Officers of a Corporation and Public
Officials.
[Note 1; add:]
1906, Washington Nat'l Bank v. Daily, 166 Ind. 631, 77 N. E. 53, semble (cited ante, § 2193,
n. 3).
Distinguish the rule that the witness alone, not the party to the trial, can claim the priv-
ilege (poH, § 2270).
[Note 2; add:]
Contra: 1910, Cumberland T. & T. Co. v. State, 98 Miss. 159, 53 So. 489 (a corporation is
not within the constitutional privilege; following Hale v. Henkel, but here Code § 5018
expressly gave immunity).
1909, State v. Standard Oil Co., 218 Mo. 1, 116 S. W. 902, 1017 (a corporation "has no con-
stitutional right to refuse to produce its books and papers"). !
1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370 (on subpoena to the secretary-treasurer of a
New Jersey corporation to produce corporate documents before a grand-jury investigating
offences against the Federal anti-trust law, it was held. Brewer, J., and Fuller, C. J., diss.,
that conceding the officer to be "entitled to assert the rights of the corporation, . . . there
is a clear distinction in this particular between an individual and a corporation, and that
the latter has no right to refuse to submit its books and papers for an examination at the
suit of the State ; . . . the corporation is a creature of the State, it receives certain special
privileges and franchises, . . . [and may therefore not refuse to answer criminating ques-
tions] when charged with an abuse of such privileges"). 1907, Cassatt v. Mitchell C. &. C.
Co., — C. C. A. — , 150 Fed. 32, 45 (whether a corporation is a "person" under either con-
stitutional amendment; the "varying expressions of opinion" in Hale v. Henkel pointed
out). 1907, International Coal M. Co. v. Pennsylvania R. Co., 152 Fed. 557^ C. C. (a cor-
poration has not a privilege to refuse to disclose books in a proceeding to recover a penalty ;
following Hale v. Henkel). 1911, Wilson v. U. S., 221 U. S. 361, 31 Sup. 538 (the defendant
was president of a corporation ; an indictment was found against him and other officers ;
a subpoena d. t. was issued against the corporation and served on the defendant, and also the
544
SELF-CRIMINATION § 2259
[Note 2 — continued]
secretary and directors ; the defendant was the custodian of the books, which contained
his own and corporate business ; he refused to produce ; the directors voted that he sur-
render the books to them for production, and he again refused; held (1) that the corpo-
ration, in view of the reserved visitatorial powers of the State, had no privilege against
self-crimination ; (2) that the defendant had no privilege to withhold the corporate books,
even though the entries were made by him ; (3) that his personal letters therein were
privileged). 1911, American Lithographic Co. v. Werckmeister, 221 U. S. 603, 31 Sup.
676.
Undecided: 1907, Re Consolidated Rendering Co., 80 Vt. 65, 66 Atl. 790 (foreign corpora-
tion subpoenaed d. t. before a grand jury ; not decided).
The decision in Hale v. Henkel, supra, may perhaps be supported on the ground that
where the criminality of an act consists, for a corporation, essentially in the violation of its
franchise or privilege, the feature of criminality is a merely incidental one ; or on the ground
that the power to create involves the power to forfeit. But the opinion does not face the
argument contra based on the criminal capacity of a corporation. Moreover, the Court's
opinion has left a vital point still unnoticed. That point is this : The privilege began,
continued, and now exists at common law, independently of statute; the Constitution
merely guarantees it against legislative alteration ; did the Supreme Court, then, mean to
say that a corporation was and is not within the privilege at common law ? or did they mean
to say merely that the Constitutional guarantee of it to all "persons" does not include
corporations? If they> meant the former, then no immunity needs to be given to, nor can
be claimed by, a corporation ; and Courts are free to exact everything from a corporation.
But if they meant the latter, then the privilege stands, for corporations, until aboUshed by
the Legislature ; hence, if the Legislature has not abolished it, the corporation may still
claim it. Hence also, if the Legislature in abolishing it has cho'sen (unnecessarily, to be
sure) to grant inununity as an inseparable gift annexed therewith, the corporation will get
the immunity when forced to relinquish the privilege. The importance of this distinction
in the current attempts to investigate corporate conduct is .obvious. But no certain light
upon it is to be found in Hale v. Henkel. The opinion in Wilson ». U. S. adopts the former
of these two views.
The corporation must of course make its claim through its officer or counsel, when called
upon as an ordinary witness (post, § 2270, n. 1) ; but when the corporation is a party,
and its officer is summoned as a witness, the claim by the corporation or its counsel, on
its own behalf, must be distinguished from the officer's personal claim, — as in Hale
v. Henkel, McAlister v. Henkel, infra, n. 3; compare §2200, par. (4), ante, Supple-
ment.
The privilege has been legislatively abolished for corporations in certain offences, since
the decision in Hale v. Henkel, supra:
in California, for public utilities (St. 1907, C. 14, § 55).
in Michigan, for certain cases (St. 1911, No. 2, quoted post, § 2281).
in Mississippi, for certain cases (St. 1912, c. 251, cited post, § 2281).
in Missouri, for public service corporations (St. 1913, p. 556, Mar. 17 ; quoted post,
§ 2281).
in New York, for investigations by the conservation department : St. 1911, c. 647, p.
1496, § 25, and St. 1912, c. 444, § 4 (cited more fully, post, § 2281).
in Oregon, for public utilities inquiries (St. 1911, c. 279, p. 483, § 59).
. in the Federal courts, for anti-trust offences, etc. U. S. St. 1906, June 30, c. 3920, Stat. L.
vol. 34, p. 798 (under the acts of Feb. 11, 1893, Feb. 14, 1903, Feb. 19, 1903, and Feb. 25,
1903, quoted post, § 2281 ; "immunity shall extend only to a natural person who, in obedi-
ence to a subpoena, gives testimony under oath or produces evidence, documentary or
otherwise, under oath").
in Wisconsin, for railroad corporations, in certain cases (St. 1905, c. 447, § 1, quoted
post, § 2281, n. 5).
645
§2259 PRIVILEGED TOPICS
[Note 3, par. 1 ; add :]
Mich. : 1904, Re Moser, 138 Mich. 302, 101 N. W. 588 (the president of a corporation held
bound to produce the corporate books for a period ante-dating his interest in the corporation ;
since he had "no right to attempt to avert real danger from others, no matter how closely
he may be associated with them " ; moreover, "when as agent for another he chooses to make
entries on the books of that other," the books may be produced from the other's possession).
Mo.: 1909, State v. Standard Oil Co., 218 Mo. 1, 116 S. W. 902, 1017.
Okl. : 1913, Burnett v. State, 8 Okl. Cr. 639, 129 Pac. 1110 (president and cashier of an in-
solvent bank corporation, held bound to hand over the bank's book to the State bank com-
missioner ; following Wilson «. U. S. infra; but here the plea allegfed that the books "might "
incriminate the defendants).
U. S. : 1890, Re Peasley, 44 Fed. 271, 275, C. C. (the treasurer of a corporation, held not
privileged to withhold the corporate books on the ground that their contents might crim-
inate the corporation). 1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370 (the constitutional
privilege "is limited to a person who shall be compelled in any criminal case to be a witness
against himself; and if he cannot set up the privilege of a third person, he certainly cannot
set up the privilege of a corporation" ; here the witness was subpoenaed personally before
a grand jury investigating by presentment against the corporation). 1906, McAlister v.
Henkel, 201 U. S. 90, 26 Sup. 385 (similar to Haleu. Henkel ; here the witness was subpoenaed
before the grand jury on a charge and complaint against the corporation).
1911, Wilson V. U. S., 221 U. S. 361, 31 Sup. 538 (cited more fully supra, note 2).
[Note 3; par. 2, 1. 3 :]
For "§ 2193," read "§ 2200, n. 10."
[Note 4; add:]
1914, Com. V. Phoenix Hotel Co., 157 Ky. 180, 162 S.W. 823 (prosecution for illegal sale of
game ; the defendant's hotel manager's claim of privilege, on the ground that facts showing
the defendant's guilt would show his own also, was sustained).
1907, Ex parte Hedden, 29 Nev. 352, 90 Pac. 737 (corporation books in the custody of A. J.
L. auditor, were summoned by subpoena on A. J. L. to be produced before the grand jury,
whereon A. J. L. was ordered by the president to hand over the books to J. F. H. general
superintendent ; held that J. F. H., not being legal custodian, was not privileged to with-
hold the books on the ground that the matters contained therein would criminate himself.
McAlister v. Henkel distinguished ; but what does the opinion mean by saying, in this day
and generation, that the privilege "was reaffirmed in Magna Charta"?)
1906, McAlister v. Henkel, 201 U. S. 90, 26 Sup. 385 (a corporate officer may plead the
privilege to resist production of books where the books contain criminating transactions of
his own and are "to all intents and purposes his own books"). 1911, Wilson v. U. S., 221 U.
S. 361, 31 Sup. 538 (cited supra, note 2).
The following ruling is distinguishable :
1909, Manning v. Mercantile Securities Co., 242 111. 584 ;. 90 N. E. 238 (the defendants were
oflBcers of a corporation, in a winding-up proceeding by stockholders charging criminal fraud
in the business ; a receiver being appointed, the chancery court ordered the defendants to
hand over the corporation books to the receiver, but the defendants failed to do so, and on
citation for contempt, answered alleging that the books contained matter incriminating
them ; held, that the privilege did not here protect them, under the principles of §§ 2264
and 2271, ptwrt).
Courts ought to recognize a form of subpoena which will obtain the corporate books
without summoning the corporation^custodian; as more fully noticed ante, § 2200, par. 4
(Suppl. 1907).
, Of course, the privilege may here, as elsewhere, be taken away by grant of immunity ;
e.g. as in Wis. St. 1905, c. 447, § 2 (quoted post, § 2281, n. 5 ; abolishes the privilege for
officers, etc., of railroad corporations in certain cases).
546
SELF-CRIMINATION § 2264
[Note 5; add:]
Haw. St. 1913, No. 42, p. 48, Mar. 28, § 6 (Financial Commission for Hawaii Co., privilege
abolished, but "an official paper or record produced by such witness is not within such
privilege")-
1909, State v. Pence, 173 Ind. 99, 89 N. E. 488 (under a statute requiring a druggist to keep
appUcations for Hquor sold, the defendant was held entitled to refuse to produce the in-
criminating applications on order of a court for a grand jury, and an indictment founded
thereon was abated).
U. S. R«v. St. 1878, § 859 ("an official paper or record produced" by a witness before
Congress "is not within said privilege" ; quoted more fully post, § 2281).
[Note 5; add:]
Whether a report required by law to be filed is within the privilege from another point of view,
is noticed post, § 2264, note 12a.
§ 2260. Facts " tending to criminate."
[Note 7; add:]
1905, Ex parte Conrades, 112 Mo. App. 21, 85 S. W. 150 (ordinance to investigate mercantile
books in order to discover possible assets evading taxation ; privilege held not applicable
to the defendant's books at large without a specific claim as to incriminating facts).
1906 Noyes v. Thorpe, 73 N. H. 481, 62 Atl. 787 (bill of discovery against the publisher
of a hbel, which was also a criminal one ; the defendant held privileged not to produce the
original manuscript nor to disclose the name of the author).
1906, Ex parte Merrell, 50 Tex. Cr. 193, 95 S. W. 1047 (liquor sales).
1906, Rudolph v. State, 128 Wis. 222, 107 N. W. 466 (bribery ; cited more iuUypost, § 2281 a,
n. 15).
§ 2261. Facts furnishing a Clue to the Discovery of Criminal Facts.
[Note 4 ; add, under Accord :]
1906, Ex parte Gfeller, 178 Mo. 248, 77 S. W. 552, semble.
1904, Re Briggs, l35 N. C. 118, 47 S. E. 403 (question No. 3 here put was similar to that
considered in Ward v. State, Mo., supra; the opinion of Clark, C. J., for the Court, over-
ruling the claim of privilege, does not allude to this question ; but Walker, J., specially con-
curring, says : "We all agree, as I understand, that the first three questions did not tend to
criminate the witness," citing Ward v. State).
§ 2264. Production or Inspection of Docimients and Chattels.
[Note I; add:]
1906, Hale v. Henkel, 201 id. 43, 26 Sup. 370 (cited more fully infra, note llo).
But it seems clear that the witness must at least answer the preliminary question whether
he has possession of the book asked for ; this may be inferred from the principle of § 2271,
post, and from the analogy of the civil party's privilege against discovery (ante, § 1859, n. 14,
§ 2200, nn. 7, 8, §2219), and the rule of §2260, orate, can seldom avail to override this result :
Contra, semble, per Holmes, J., in Ballmann ». Fagin, 200 U. S. 186, 26 Sup. 212 (1905).
[Note 2, par. 1 ; add :]
Cdl. : 1909, People v. LeDoux, 155 Cal. 535, 102 Pac. 517 (papers taken on an unauthorized
search, admitted; Adams v. New York, U. S., followed; Boyd v. U. S. distinguished).
D. C. : 1912, U. S. v. Halstead, 38 D. C. App. 68 (taking of a bankrupt's books, by a receiver
under court order ; privilege not violated.
Ga. : 1906, Duren «. Thomasville, 125 Ga. 1, 53 S. E. 814 (liquor seized by unlawful search ;
Williams v. State followed) ; but now see the later cases cited infra, note 77).
547
§2264 PRIVILEGED TOPICS
' [Note 2 — continued]
III. : 1904, Swedish-American Tel. Co. v. Fidelity & C. Co., 208 111. 562, 70 N. E. 768 (here
the privilege was held not violated by an order which merely authorized inspection of the
books by the applicant-party while in the defendant's possession). 1909, Manning v. Mer-
cantile Securities Co., 242 111. 584, 90 N. E. 238 (ofBcers of a corporation having custody of
corporation documents, ordered to hand them over to a receiver appointed in winding-up
proceedings, held in contempt for refusal and not to be protected by the privilege, because
"the possession of the receiver is the possession of the Court" ; but the opinion unsoundly
announces that "the appellants could be fully protected by the Court from the use of such
evidence against them while the books are in the hands of the receiver" ; for the writ of
sequestration is like a search-warrant and involves no testimonial process against the offi-
cers).
Kan. : 1905, State v. Schmidt, 71 Kan. 862, 80 Pac. 948 (bottles of liquor, seized from the
defendant's possession by an officer without a warrant, admitted).
La. : 1904, State v. Aspara, 113 La. 940, 37 So. 883 (clothing taken from defendant in jail,
exhibited).
Md. : 1906, Lawrence v. State, 103 Md. 17, 63 Atl. 96 (documents taken by the police from
the defendant's satchel or from his person under arrest, admitted ; Boyd v. U. S. not followed
as to its obiter statements, but Adams v. New York, U. S., infra, n. 11a, followed ; Blum v.
State, Md., infra, n. 11, distinguished, as involving "virtually compulsory process for the
production of evidence in the immediate proceeding in which it was offered").
Minn. : 1905, State v. Strait, 94 Minn. 384, 102 N. W. 913 (defendants were bankers in
partnership, and on voluntary assignment in bankruptcy a trustee took possession of the
banking books ; held that the defendants were not entitled to claim the privilege to prevent
the use of the books before the grand jury on subpoena to the trustee ; Boyd v. U. S. dis-
tinguished). 1911, State 11. Rogne, 115 Minn. 204, 132 N. W. 5 (scrap iron taken by the
sheriff from thte defendant's premises; privilege not applicable).
Mo.: 1908, State v. Jeffries, 210 Mo. 302, 109 S. W. 614 (defendant's shoes; "it is imma-
terial how they were obtained").
Mont. : 1906, State v. Fuller, 34 Mont. 12, 85 Pac. 369 (the majority opinion in Boyd v.
U. S., disapproved).
JV. Y. : People v. Adams, supra, affirmed on writ of error in Adams v. New York, 192 U. S.
585, 24 Sup. 372 (1904), (stated infra, n. 11a).
Pa. : 1910, Coin. v. Ensign, 228 Pa. 400, 77 Atl. 657 (insolvent banker's receipt of deposits ;
his books delivered by him to the U. S. bankruptcy trustee in involuntary bankruptcy, and
obtained from the trustee, admitted).
S. D. : 1908, State v. Vey, 21 S. D. 612, 114 N. W. 719 (unsealed letter handed by accused
to sheriff in jail, and kept by sheriff; admitted).
Vt. : 1905, State v. Krinski, 78 Vt. 162, 62 Atl. 37 (illegal keeping of liquors ; articles seized
under an illegal warrant, admitted; distinguishing State v. Slamon, Vt., infra, n. 11, and
approving Adams v. U. S., U. S., infra, n. 11a). 1905, State v. Barr, 78 Vt. 97, 62 Atl. 43
(like State v. Krinski, supra).
Wash. : 1905, State v. Royce, 38 Wash. Ill, 80 Pac. 268 (burglary; a pawn ticket taken from
the defendant's person on search by the arresting officers, admitted ; Gindrat v. People, 111.,
followed).
Distinguish also the rule that a subpoena for documents must be reasonably specific in its
terms, in order to be entitled to obedience (cases cited ante, § 2200, n. 6).
Compare the rule admitting documents obtained by illegal search {ante, § 2183) ; that rule
and the present one are often involved in the same case.
[Noted; add:]
Of course, on an application for the return of documents or chattels unlawfully seized by the
officer, the doctrine of U. S. v. Boyd can properly be given full effect.
1911, U. S. V. Mills, C. C. S. D. N. Y., 185 Fed. 318.
548
SELF-CRIMINATION § 2264
[Note 11; add:]
Ga. : 1907, Hammock s. State, 1 Ga. App. 126, 58 S. E. 66 (carrying concealed weapons ;
practically repudiating, for this State, the foregoing cases ; cited more fully ante, § 2183,
n. 1).
1907, Hughes v. State, 2 Ga. App. 29, 68 S. E. 390 (similar).
1907, Sherman v. State, 2 Ga. App. 686, 58 S. E. 1122 (similar). 1907, Smith v. State, 3
Ga. App. 326, 59 S. E. 934 (selling liquor illegally ; the Hammock Case distinguished ; see
the citation ante, § 2183, n. 1). 1913, Underwood v. State, 13 Ga. App. 206, 78 S. E. 1103
(cited more fully ante, § 2183, n. 1).
Okl.: 1911, Gillespie «. State, 5 Okl. Cr. 546, 115 Pac. 620 (cited more fully post, § 2273,
n. 3).
[Text, p. 3127, last line; add:]
That case, however (Boyd v. U. S.), in later Federal opinions, has m effect
been pared down, and for practical purposes repudiated (in respect to the
obiter statements in the majority opinion, above noted), by rulings which
hold decisively (1) that the Fourth Amendment does not prevent the use of
documents and chattels obtained by search-warrant, and (2) that furthermore
the use of documents produced under compulsion of subpoena, for which the
privilege under the Fifth Amendment has been taken away by an immunity-
statute, cannot be objected to on the ground of the Fourth Amendment.""
"" 1893, Tucker v. U. S., 151 U. S. 164, 168, 14 Sup. 299 (defendant's affidavit, voluntarily
filed, for the summoning of witnesses in his behalf, admitted to contradict him, and held not
to be a violation of the privilege nor of U. S. Rev. St. 1878, § 860, quoted post, § 2281).
1904, Adams v. New York, 192 U. S. 585, 24 Sup. 372 (facts stated supra, n. 2, in People
V. Adams, N. Y., brought here on writ of error ; the Federal Court referred to the opinion
of the majority in Boyd v. U. S. with apparent approval of its statement as to the history
of the two Amendments ; but held that here there was no violation of either Amendment, —
not of the Fifth, because "he was not compelled to testify, concerning the papers or make
any admission about them," nor of the Fourth, because the search was not wrongful ; and
that in any event the effect of the Fourth does not "extend to excluding testimony which
has been obtained by such means, if it is otherwise competent" ; thus practically drawing
the fangs of the erroneous obiter dictum in the majority opinion of Boyd v. U. S.).
1904, Interstate Commerce Commission v. Baird, 194 U. S. 25, 24 Sup. 563 (order to an
officer of a defendant corporation to testify and produce certain contracts of the corporation
before the Commission ; the privilege of the Fifth Amendment being obviated by the im-
munity of St. 1893, under § 2281, post, the Court held that the Fourth Amendment did not
stand in the way; "testimony given under such circumstances presents scarcely a sugges-
tion of an unreasonable search or seizure"; this squarely contradicts in effect the obiter
dictum of the majority opinion in Boyd v. U. S.).
1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370 (similar, for corporation documents produced
upon subpoena before a grand jury, by an officer entitled to the immunity-clause of St. 1903,
Fed. 25, quoted post, § 2281 ; of the Boyd case, it is said that "suj?sequent cases treat the
Fourth and Fifth Amendments as quite distinct, having different histories, and performing
different functions" ; this seems to signify plainly that the obiter statements of the majority
opinion in the Boyd case are no longer approved by the Federal Supreme Court ; Harlan
and McKenna, JJ., concurring, emphasize the fact that a corporation may not be within
the Fourth Amendment at all).
1908, U. S. V. Wilson, C. C. S. D. N. Y., 163 Fed. 338 (cited more fully ante, § 2183).
1910, In re Tracy & Co., D. C. S. D. N. Y., 177 Fed. 532 (refusing to restrain a trustee in
bankruptcy from delivering to the district attorney for use in prosecution the bankrupt's
549
f 2264 PRIVILEGED TOPICS
[Text, p. 3127 — continued]
books taken possession of by the receiver, delivered by him to public accountants, and
taken by the district attorney from them under subpoena with the trustee's connivance ;
there need not have been any hesitation about this case).
1912, Johnson v. U. S., 228 U. S. 457, 33 Sup. 572 (where a bankrupt's books have been
transferred to the trustee under § 70 of the Bankruptcy Act, without any reservation of
rights in the court's order, then the trustee's use of the books, either before the grand jury
or before the trial jury, on a charge of fraudulent concealment of assets, is not a violation
of the privilege; opinion per Holmes, J. : "A party is privileged from producing the evi-
dence, but not from its production " ; "A man cannot protect his property from being used
to pay his debts by attaching to it a disclosure of crime ").
1913, U. S. V. Harris, D. C. S. D. N. Y., 164 Fed. 292 (motion for receiver asking for order
that bankrupt deliver books^of account to the receiver; order framed directing delivery,
but protecting them against any use other than for civil litigation over the estate ; the Court
very properly hesitates over the order ; but why was it assumed that without such an order
the receiver could not get lawful possession of the books? Are not the books a part of the
business property and is not the receiver entitled to enter in possession and turn out the
bankrupt ? A man who buys a horse and stable from another is entitled to go to the stable
and take the horse without waiting for a court order).
1914, Weeks v. U. S., 232 U. S. 383, 34 Sup. 341 (cited more fully ante, § 2189, n. 1 ; it prob-
ably does not restrict the effect Of the prior rulings, so far as the present principle is con-
cerned).
[Text, p. 3128, par. (a), at the end; add:]
An interesting question is here presented by those laws which require, from
persons in a particular business, the filing of a report or schedule in the hands
of some public officer. Are we to say that this is a compulsory testimonial
disclosure, and that therefore the report need not be prepared and filed at all,
so far as concerns matters tending to criminate ? Or are we to say that if the
purpose of the report is primarily to assist in the public administration, it must
be prepared and filed, and that then its use in a criminal prosecution, if at-
tempted, can be barred by the privilege ? The latter seems the more practical
view. But the cases have thus far been decided on individual grounds, usu-
ally either that of waiver or that of official duty.^^"
^^ Compare the statutes cited post, § 2281, and the following cases : 1903, People v.
Butler S. F. & I. Co., 111., cited post § 2281, n. 11 (trusts).
1888, State v. Smith, la., cited ante, § 2259, n. 5 (pharmacist). 1888, State v. Cummins, la.,
cited ante, § 2259, n. 5 (pharmacist).
1900, People v. Henwood, 123 Mich. 317, 82 N. W. 70 (St. 1899, No. 183, § 25, requiring
druggists to file with the prosecuting attorney a sworn report of Uquors sold, held not to
violate the privilege, in so far as a failure to file a report was charged as the offence of the
druggist). 1904, People v. Robinson, 135 Mich. 511, 98 N. W. 12 (druggist; a report vol-
untarily filed was held admissible).
1894, St. Joseph v. Levin, 128 Mo. 588, 31 S. W. 101 (pawnbroker ; like People v. Henwood,
Mich).
1910, People ex rel. Ferguson v. Reardon, 197 N- Y. 236, 90 N. E. 829 (a tax-statute appli-
cable to brokers provided that transfers of stock should be taxed, that each broker should
keep an account-book entering such transfers made by him, that the failure to pay the tax
should be an offence, and that the failure to make entries of transfers should be an offence ;
the Comptroller's agent demanded inspection of the relator's books, but he refused ; held,
that he was privileged. The opinion proceeds on erroneous reasoning, for it treats the pro-
550
SELF-CEIMINATION § 2264
[Text, p. 3128 — continued]
ceeding'as an attempt to " force the relator to produce before the Comptroller his books,"
which it was not. The mere inspection by the agent could not be in any sense a compulsion
of the relator to testify. The only compulsory self-crimination could have been the rela-
tor's making an entry exhibiting that he had transferred stock without paying tax ; but as
the offence could consist only in subsequent non-payment, it is difficult to see how the entry
could have been a crime. The non-entry would have been an offence; but the agent's
inspection and discovery of a non-entry would not have been a self-criminating production
by the broker).
1901, State v. Donovan, N. D., cited ante, § 2259, n. 1 (druggist).
An analogous case is presented by those laws which require a person whose
whicle, machinery, or other property has caused an injury, to make an oral
disclosure to an official, at the time, of his name and address or of other cir-
cumstances of the injury. Here it would seem that the policy of the privilege,
at least (ante, § 2251), is not infringed, i.e. the danger of encouraging the
police and prosecuting officers to rely upon the accused's self-disclosure, in-
stead of searching completely to amass all the evidence of an offence ; for a
disclosure under such statutes is made freshly on the spot, if at all, and no
motive is afforded for slackness in the search for evidence and for relying upon
a later disclosure by the accused at the pleasure of the prosecuting officers.
Moreover, the failure to make such a disclosure may block all subsequent
efforts to discover the offender, and thus the privilege, if it annuls such stat-
utes, may do the most harm to justice of which it is ever capable. On the
other hand, it is difficult to avoid the conclusion that logically the principle
of the privilege applies, for the statutory rule is in effect the sanie as if it re-
quired the doer of any crime to make immediate report of his name and address ;
and the former item at least is plainly a fact " tending to criminate." It
would seem that the only safe legislation of this sort would limit itself to re-
quiring the vehicle-operator to stop; omitting any requirement as to self-
disclosure of name and address ; for if he stops, the police or the bystanders
can then observe the vehicle-number and may even arrest him and search him
(supra, note 2), which fully answers the needs of justice. And to make the
non-stopping a crime is not to violate the privilege, any more than to make the
non-bearing of a numbered tag is a violation.^^"
^'' The cases hitherto are few, and the opinions inadequate :
1912, Ex parte Kneedler, 243 Mo. 632, 147 S. W. 983 (St. 1911, p. 328, § 12, provided that
any operator of a motor vehicle "who knowing that injury has been caused to a person or
property due to the culpability of the said operator or to accident, leaves the place of said
injury or accident without stopping and giving his name, residence," etc., to the injured per-
son, or a police officer, etc., shall be guilty of a felony; held not unconstitutional ; (1) the
mere fact of identity is "no evidence of guilt" ; "in the large majority of cases, such acci-
dents are free from culpability" ; this reasoning is fallacious, and ignores the principle of
§ 2260, ante; (2) even if the statute violates the privilege, the question should be raised on
the trial for the offence, and not by habeas corpus, as here).
1913, People v. Rosenheimer, 128 N. Y. Suppl. 1093, 130 N. Y. Suppl. 544, 209 N. Y. 115, 102
N. E. 530 (a statute providmg that a person operating a motor vehicle, who, knowing that
injury has been caused by the operator's culpability, leaves the place without starting his
name, address, etc., shall be guilty of a felony, does not in requiring such disclosure violate
551
§2264 PRIVILEGED TOPICS
[Text, p. 3128 — continued]
the privilege, and an indictment for such a felony is valid ; reversing two intermediate
rulings ; approving Ex parte Kneedler, Mo. ; one judge diss, in the Court of Appeals ; the
opinions do not adequately dispose of the question).
§ 2265. BodUy Exhibition.
{NoU2; add:]
1910, State ». McKowen, 126 La. 1075, 53 So. 353 (defendant's refusal to write the word
"incorrigible," as a test of his spelling, allowed to be considered ; but here he had presum-
ably waived his privilege by taking the stand).
1906, State v. Church, 199 Mo. 605, 98 S. W. 16 (examinationof defendant in jail by phy-
sicians without objection by defendant, held not to violate the privilege).
1905, State v. Miller, 71 N. J. L. 527, 60 Atl. 202 (defendant called upon by officers to place
his hand upon a bloody mark, for comparison; allowed, the accused having voluntarily
compUed).
[NoteZ; cM:]
1906, Moss V. State, 146 Ala. 686, 40 So. 340 (shoes taken off voluntarily by the accused in
prison, at an officer's request, and handed to him; admitted).
1904, Shaffer v. U. S., 24 D. C. App. 417, 425 (accused allowed to be identified by a photo-
graph of him taken while under arrest).
1912, Terr. v. Chung Ning, 21 Haw. 214, 219 (examination of defendant's person by ordering
him to remove his trousers, "which he did without objection," held not a violation of the
privilege).
1905, State v. Arthur, 129 la. 235, 105 N. W. 422 (burglary; shoe measurements admitted,
made with shoes given up by the defendant to the sheriff at his direction ; State v. Height
distinguished, because the defendant's voluntary surrender of the shoes was a waiver).
1906, State v. Graham, 116 La. 779, 44 So. 90 (sheriff's measurements of shoe-tracks, by put-
ting the accused's feet in them, without resistance by him, admitted).
1909, Downs V. Swann, 111 Md. 53, 73 Atl. 653 (photographing and measuring of arrested
persons not yet convicted, for purposes of identification, is not a violation of the privilege ;
collecting the authorities).
1908, Magee v. State, 93 Miss. 865, 46 So. 529 (compelling the accused to put his foot in a
track, to identify him.held not a violation of privilege; careful opinion by Whitfield, C. J.).
1906, State «. Ruck, 194 Mo. 416, 92 S. W. 706 (accused compellable to stand up for identi-
fication by a witness). 1909, State v. Newcomb, 220 Mo. 54, 119 S. W. 405 (rape under age ;
physician's examination of defendant's private parts, while under arrest, by order of the
justice, held a violation of the privilege). 1913, State s. Horton, 247 Mo. 657, 153 S. W. 1051
(physician's examination for venereal disease by order of police captain, held a violation of
the privilege, on the erroneous ground that failure to object is not a waiver).
1906, State v. Fuller, 34 Mont. 12, 85 Pac. 369 (shoes of defendant, compared by the sheriff
with footprints ; privilege not violated ; here the defendant voluntarily gave them ia, the
officer, but the opinion expressly declares this immaterial).
1905, Krens v. State, 75, Nebr. 294, 106 N. W. 27 (testimony to comparisons of shoe-tracks,
made with shoes taken from the accused, allowed).
1879, State u. Ah Chuey, 14 Nev. 79 (the defendant was compelled "to exhibit his arm so as
to show certain tattoo marks" ; held, not a violation of privilege; "no evidence of phys-
ical facts can be held" to be within the privilege ; best opinion, by Hawley, J. ; Leonard,
J., diss). 1910, State v. Petty, 32 Nev. 384, 108 Pac. 934 (the defendant, pleading sadistic
insanity, and having called an expert who had examined him, the Court's order appointing
three other physicians to examine him in the county jail for the same purpose, was held
proper) .
552
SELF-CRIMINATION , §2268
[Note 3 — contimied]
1905, State v. Miller, 71 N. J. L. 527, 60 Atl. 202 (doctor's testimony to wounds on the ac-
cused's hands, observed after the accused's clothes were taken off in jail, admitted ; here it
did not appear that the exhibition wa,s not voluntary, but the Court laid down the same rule
for a forcible stripping).
1907, People v. Furlong, 187 N. Y. 198, 79 N. E. 978 (People v. Truck followed). 1908,
People V. StroUo, 191 N. Y. 42, 83 N. E. 573 (search and examination by the police, held not
a violation of privilege on the facts).
1912, State v. Thompson, 161 N. C. 238, 76 S. E. 249 (the constable told the accused to
shoulder the gun, aim it, etc., and he did so ; held admissible, following State v. Graham).
1906, State v. Sanders, 75 S. C. 409, 56 S. E. 35 (placing defendant's foot in a track, with
his consent, held not a violation of the privilege). 1913, State i). Mcintosh, 94 S. C. 439,
78 S. E. 327 (like State v. Atkinson; admitted).
1906, Turman v. State, 50 Tex. Cr. 7, 95 S. W. 533 (rape ; held improper "for the State to
require appellant to place the cap on his head for the purpose of identification by the prose-
cutrix," although he had voluntarily taken the stand ; Benson v. State ignored ; this Court
seems disposed to make it hard for an accused not to be acquitted). 1907, Powell v. State,
50 Tex. Cr. 692, 99 S. W. 1005 (photographs of defendant's hand, taken with his consent
and after warning, admitted).
1910, Holt V. U. S., 218 U. S. 245, 31 Sup. 2 (the accused's putting on of a blouse, to see
whether it was his ; held, not privileged).
§ 2268. Criminating Questions not forbidden.
lNoU2; add:]
1905, Re Knickerbocker Steamboat Co., 139 Fed. 713, C. C. (the party claiming privilege
"must say so in unmistakable language and give the reasons for shielding himself").
1908, U. S. V. Price, U. S. v. Haas, C. C. S. D. N. Y., 163 Fed. 904 (the now defendants had
been subpoenaed to appear before the grand jury; they appeared and were informed of the
subject of inquiry and of their privilege, and were sworn ; they protested against being sworn,
claimed privilege as to the few preliminary questions asked, and were then dismissed ; held
(1) that they were not in the position of defendants but of ordinary witnesses, and (2) that
as witnesses their privilege was not violated ; careful opinion by Hough J.).
1907, Re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790 (the witness must appear and
make claim; he cannot refuse to obey a subpoena d. t. and also claim privilege).
Contra : 1911, State v. Thome, 39 Utah 208, 117 Pac. 58 (no relevant authority cited ; does
the privilege justify us in tenderly swathing accused persons in cotton wool?).
[Note 3, col. 2, 1. 8 from the top ; add:]
Contra: 1897, Earl of Mexborough v. Whitwood U. D. Council, 2 Q. B. Ill (forfeiture of
lease; leave to administer interrogatories, denied; foregoing cases not cited).
[Note 3 ; add, at the end ;]
For a consideration of the effect of this doctrine on the immunity-slaiutes, see ■post, § 2281a.
[Nate 4 ; add :]
So also for inquiries by a grand jury; the witness must take the oath before the privilege
can be claimed :
1913, State v. Cox, 87 Ohio 313, 101 N. E. 135.
[Note 5 ; add, in accord with the Text :]
1900, Re Green, 86 Mo. App. 216 (cited infra, n. 6).
1904, Ex parte Sauls, 46 Tex. Cr. 209, 78 S. V^,. 1073 (habeas corpm; the relators were ar-
553
§2268 PRIVILEGED TOPICS
[Note 5 — continued]
rested under a search-warrant for liquor illegally kept, and on arraignment before the jus-
tice they objected to being sworn at all ; held that "they could refuse to be sworn as well as
to testify" ; " there might be adifferent question raised if the parties were testifying in a case
other than their own").
[Note&; add:\
Contra : 1900, Re Green, 86 Mo. App. 216 (citation under statute against a former admin-
istrator, with interrogatories charging concealment, embezzlement, etc. ; the defendant's
situation being "analogous to that of a defendant in a criminal suit," "he cannot be called
by the opposite party as a witness").
[Note 7; add:]
1903, Ex parte Gfeller, 178 Mo. 248, 77 S. W. 552 (interrogatories to a witness in a proceeding
against E. for discovery of property embezzled from an estate ; interrogatories allowed ;
distinguishing Re Green, n. 6, supra).
So too before a grand jury: 1902, U. S. v. Kimball, 117 Fed. 156, 163.
§ 2269. Judge's Warning to the Witness.
[NoU3; add:]
1904, Ivy V. State, 84 Miss. 264, 36 So. 265 ("the better practice" requires a warning).
1906, State v. Mungeon, 20 S. D. 612, 108 N. W. 552 (incest ; the prosecutrix being unwilling
to testify, the Court's refusal to advise her of the privilege, on demand of defendant's coun-
sel, was held not improper).
1913, State v. Lloyd, 152 Wis. 24, 139 N. W. 514 (examination before the State fire-marshal;
warning held not necessary).
§ 227Q. Who may Claim the Privilege, etc.
[Note 1, par. 1; add:]
1905, State v. Cobley, 128 la. 114, 103 N. W. 99.
1906, McAlister v. Henkel, 201 U. S. 90, 26 Sup. 385 (a corporation cannot claim for its
officer as witness). Compare the cases cited ante, § 2196.
[Note 1, par. 2 ; ocH;]
1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370, semble.
[Note 2, par. 1 ; add, under Accord:]
Accord: 1906, State v. Mungeon, 20 S. D. 612, 108 *N. W. 552 (cited ante, § 2269, n. 3).
Contra ': 1906, State v. Barker, 43 Wash. 69, 86 Pac. 387 (said obiter, without citing authority,
that an attorney, who was signalling a witness to claim privilege, might "interpose suit-
able and timely objections" to the questions).
[Note 3 ; add, under Accord :]
1907, Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040 ("the party cannot review the action
of the Court here").
1890, State v. Van Winkle, 80 la. 15, 45 N. W. 388. 1905, State «. Cobley, 128 la. 114,
103 N. W. 99.
1907, Taylor v. U. S., 152 Fed. 1, 7, C. C. A. (Morgan v. Halberstadt followed).
Compare the cases cited ante, § 2196.
[Note 4; add:]
1913, State v. Cox, 87 Oh. 313, 101 N. E. 135.
654
SELF-CRIMINATION § 2271
[Note 5; add:]
Contra: 1878, People v. Brown, 72 N. Y. 571, 573.
1905, State v. Shockley,29 Utah 25, 80 Pac. 865 (the reasoning in this opinion is fallacious;
Bartch, C. J., diss.)-
[Note 6, par. 1 ; add :]
How an erroneous ruling of this sort ought to be treated is shown in Pendleton v. U. S.,
1909, 216 U. S. 305, 30 Sup. 315 (the Philippine trial judge, in his finding, having noted that
"the accused did not use his right to testify in his own favor," and the Philippine Supreme
Coui-t in denying a new trial having explicitly declared that "this Court in deciding the
cause did not take said fact into consideration, but rendered the decision in accordance with
the proofs," the Federal Supreme Court held that the original error, if any, "was not re-
peated in the Supreme Court and is not a ground of legal complaint").
[Note 6, par. 3 ; add :]
1885, Mackin v. People, 115 111. 312, 3 N. E. 222.
1903, Lindsey v. State, 69 Oh. 215, 69 N. E. 126 (good opinion by Spear, J.) ; and the cases
cited ante, § 2252, n. 11, par. 2.
1909, Pendleton v. U. S., 216 U. S. 305, 30 Sup. 315 (where the prosecuting attorney in the
PhiUppines summoned the accused to answer questions, but the answers were not "after-
wards used in any way").
1913, State v. Lloyd, 152, Wis. 24, 139 N. W. 514.
Of course the improper compulsion of an accused by a justice of the peace to answer an
incriminating question does not entitle the accused to plead immunity when tried before a
jury, even though such answer cannot be used against him :
1912, Scribner v. State, 9 Okl. 465, 132 Pac. 933. 1913, Faucett v. State, — Okl. — , 134
Pac. 839.
[Note 6, par. 4 ; add :\
1905, State «. Faulkner, 185 Mo. 673, 84 S. W. 967.
Of course, a false statement made in answer to questions which the witness comW hy privilege
have refused to answer but did not refuse to answer, leaves him liable to perjury :
1908, People v. Cahill, 193 N. Y. 232, 86 N. E. 38.
But, of course, also, an answer confessing under compulsion that an answer on a former
examination was false cannot be used on a trial for perjury in the former answer :
1912, State v. Thornton, 245 Mo. 436, 150 S. W. 1048.
[Note 6 ; add, as par. 5 :]
How far a judicial order overruling a claim is interlocutory only and therefore not subject
to appeal, is considered in Alexander v. U. S., 201 U. S. 117, 26 Sup. 356 (1906).
Doyle V. London Guarantee & A. Co., 204 U. S. 509, 27 Sup. 313 (1907).
For the course of proceeding in a prosecution for the offence of wilful refusal to testify, see
U. S. V. Praeger, — CCA. — , 149 Fed. 474, 484 (1907; court-martial).
§ 2271. Who may Determine the Claim; Judge and Witness.
[Note 3; add:]
1899, Kelly v. Colhoun, L. R. 2 Ire. 199 (libel).
[Note 4 ; add :]
1913, Empire Life Ins. Co. v. Einstein, 12 Ga. App. 380, 77 S. E. 209 (rule in Burr's Case
followed).
1909, Manning v. Mercantile Securities Co., 242 111. 584, 90 N. E. 238 (R. v. Boyes and Brown
V. Walker followed ; here the officers of a corporation were held not to state a ground of
555
§2271 PRIVILEGED TOPICS
[Note 4 — continued]
privilege in refusing to hand the corporation books to a receiver, because some of the contents
could not be incriminating and no specific facts showing the criminating portions were
named).
1905, Wilson v. Ohio F. Ins. Co., 164 Ind. 462, 73 N. E. 893 (rule in U. S. v. Burr applied
to a claim by the principal of a bond in an action against the surety).
1904, Re Moser, 138 Mich. 302, 101 N. W. 588 (rule of U. S. v. Burr approved; Moore,
C. J., diss.). 1906, Re Mark, 146 Mich. 714, 110 N. W. 61 (rule in U. S. v. Burr applied).
1909, Ex paHe-Gauss, 223 Mo. 277, 122 S. W. 741 (rule in Burr's Trial, applied).
1909, McGorray v. Sutter, 80 Oh. 400, 89 N. E. 10 (rule in Burr's Trial approved; here on
habeas corpus; explaining the earlier case of Warren v. Lucas, 10 Oh. 336).
1907, Ex parte Andrews, 51 Tex. Cr. 79, 100 S. W. 376.
1904, Re Hess, 134 Fed. 109, D. C. (a bankrupt pleading the privilege for his books "should
be required to bring the books and papers . . . before either the Court or the referee,"
the Court to "pass upon the probability of danger"). 1906, U. S. v. CoUins, 145 Fed. 709,
D. C. (witness' claim held not suflBcient on the facts). 1906, U. S. v. Collins, 146 Fed. 553,
D. C. (rule applied to a party summoned to produce documents before a grand jury).
1907, Re ConsoUdated Rendering Co., 80 Vt. 55, 66 Atl. 790 (rule of State v. Thaden, Minn.,
approved).
§ 2272. Effect of Making Claim, as to Inferences, etc.
[Note 1 ; add :]
1894, Kops V. Reg., App. Cas. 650 (under N. S. Wales St. 1892, 55 Vict. No. 5, § 6, the judge
may comment on the accused's failure to explain by his own testimony the evidence against
him ; and the provision against being "compellable" to testify does not forbid the drawing
of inferences).
1904, R. V. Maguire, 35 N. Br. 609 (the judge's comment on the accused's failure to show
an alibi, held on the facts a comment violating Dom. St. 1893, c. 31. § 4, supra).
1908, Mudge's Case, 1 Cr. App. 62 (inference made from accused's failure to take the stand,
under St. 1898, quoted ante, § 488). 1909, Kirkham's Case, 2 Cr. App. 253 ("People who
set up an alibi, and do not go into the box, are not entitled to come here and rely upon that
defence"). 1909, Hampton's Case, 2 Cr. App. 274. 1909, Theodorus' Case, 3 Cr. App. 269.
[Note 2; add:]
Ind. St. 1905, p. 584, § 235 (re-enacts Rev. St. 1897, § 1889).
Mass. : 1909, Phillips v. Chase, 201 Mass. 444, 87 N. E. 755 (comment allowable, except
when prohibited by statute; see citation infra, note 3).
N. C. Rev. 1905, § 1634 (like Code 1883, § 1353).
[NoteS; add:]
Mass. : 1909, Phillips v. Chase, 201 Mass. 444, 87 N. E. 755 (inference and comment allow-
able, except as expressly prohibited by statute j going upon the cases in Maine, New Jersey,
and England, and upon the inapplicable Massachusetts cases cited post, § 2273, notes 6, 8 ;
an extraordinary ruling).
N. J. : 1906, State v. Banusik, — N. J. L. — , 64 Atl. 994 (comment by the judge). 1906,
State V. Twining, 73 N. J. L. 683, 64 Atl. 1073, 1135 (comment by the judge). 1908,
State V. Callahan, 76 N. J. L. 426, 69 Atl. 957. 1908, State v. Skillman, 76 N. J. L. 474,
70 Atl. 83. 1909, State v. Callahan, 77 N. J. L. 685, 73 Atl. 235 (Court of Errors and Ap-
peals prior opinion explained).
1908, Twining v. New Jersey, 211 U. S. 78, 29 Sup. 14 (State v. Twining, N. J., supra, held
not to raise a question under U. S. Const. Amendment XIV, and to be rightly decided so
far as New Jersey law was controlling).
556
SELF-CRIMINATION §2272
[Note 5; add:]
1904, 0'Dell V. State, 120 Ga. 152, 47 S. E. 577. 1904, Minor v. State, 120 Ga. 490, 48 S. E.
198.
1910, People v. McMahon, 244 111. 45, 91 N. E. 104.
1904, State v. Rambo, 69 Kan. 777, 77 Pac. 563.
1904, State v. Robinson, 112 La. 939, 36 So. 811.
1911, Com. V. Richmond, 207 Mass. 240, 93 N. E. 816 (sensible opinion by Rugg, J., the
best on the subject).
1907, People v. Cahill, 147 Mich. 201, 110 N. W. 520.
1907, State v. Kelleher, 201 Mo. 614, 100 S. W. 470.
1905, State v. Williams, 28 Nev. 395, 82 Pac. 353.
1909, Sturgis v. State, 2 Okl. Cr. App. 362, 102 Pac. 57.
1912, Com. V. Green, 233 Pa. 291, 82 Atl. 250.
1907, State ». Bennett, 21 S. D. 396, 113 N. W. 78.
1892, Wilson v. U. S., 149 U. S. 68, 13 Sup. 765.
1892, State v. Chisnell, 36 W. Va. 667, 15 S. E. 412.
For the only proper mode of treating an erroneous ruling on this point, see Pendleton v.
U. S., 1909, 216 U. S. 305, 30 Sup. 315 (cited more fully ante, § 2270, n. 6, par. 1).
{Note 6, col. 1 ; add :]
1904, Thomas v. State, 139 Ala. 80, 36 So. 734.
1904, State v. Levy, 9 Ida. 483, 75 Pac. 227 (sensible opinion by Sullivan, C. J.). 1911,
State J). Gruber, 19 Ida. 692, 115 Pac. 1.
1905, Miller v. People, 216 111. 309, 74 N. E. 743 (Court comment forbidden).
1905, State v. Seery, 129 la. 259, 105 N. W. 511.
1906, People v. Provost, 144 Mich. 17, 107 N. W. 716 (careful opinion, by McAlvay, J.,
reviewing the various rules). 1906, People v. Murphy, 145 Mich. 524, 108 N. W. 1009.
1905, State v. DeWitt, 186 Mo. 61, 84 S. W. 956 (revising State v. Robinson).
1911, State ». Carlisle, 28 S. D. 169, 132 N. W. 686.
1904, State v. Deatherage, 35 Wash. 326, 77 Pac. 504.
In some cases, it may be proper not to stop the counsel's argument, but merely to give an
instruction later : 1909, Com. v. People's Express Co., 201 Mass. 564, 88 N. E. 420.
[Note 6, last line ; add :]
to which add another State :
Kan. C. C. P. § 215 (Gen. St. 1897, c. 102, § 218), quoted ante, § 488. 1904, State v.
Rambo, 69 Kan. 777, 77 Pac. 563 (here the Court with fervid scholastic zeal applied this
intellectual thumbscrew, and set aside the verdict because the jurors in their deliberations
were unable to fetter their native reasoning powers to suit the statute). 1906, State v.
Brooks, 74 Kan. 175, 85 Pac. 1013 (discusses the meaning of the term "considered" in the
statute, and finds no violation of it in this case).
The actual effect, in experience, on the minds of jurymen, of forbidding the inference, may
be gathered from Mr. (Assistant District Attorney) Arthur Train's useful book, "The
Prisoner at the Bar" (1906), pp. 160-164.
[Note 7; add:]
1*905, Powers v. State, 75 Nebr. 226, 106 N. W. 332 (adultery with the wife of C. ; the wife's
claim of privilege, when_ called by the prosecution to prove the adultery, held to permit no
inference as to the defendant's guilt; no authority cited).
[Note 8; add:]
1904, Boyd v. State, 84 Miss. 414, 36 So. 525 (by a majority).
1911, Parrott v. State, 125 Tenn. 1, 139 S. W. 1056. 1913, Smithson v. State, 127 Tenn.
357, 155 S. W. 133.
557
§2272 PRIVILEGED TOPICS
[Note 9; add;]
Moreover, his testimony at a prior trial may also be now offered against him, as an admis-
sion, even though he does not on this trial take the stand, — on the principle of § 1051,
ante : 1905, Miller v. People, 216 111. 309, 74 N. E. 743 (three judges dissenting, but without
ground, and citing no authority).
[Note 11; add:]
Nor, of course, does it forbid the prosecution's giving of notice to produce under §§ 1202,
1209, ante, required as preliminary to proof by copy. This is so elementary that Lord Eldon
would have lamented the decay of sound principle under the blight of democracy could
he have read the contrary statement in the opinion in McKnight v. U. S. (1902), 115 Fed.
972.
§ 2273. Same : Inference from not Producing Evidence, distinguished.
[Note 1; add:]
1904, R. V. Aho, 11 Br. C. 114 (a statement in the charge that the onus is on the accused
to account for his presence at the place, etc., the accused not taking the stand, is proper).
1906, R. V. Burdell, 11 Ont. L. R. 440 (failure to account for possession of stolen goods).
1909, R. V. Guerin, 18 Ont. L. R. 425 (Riddell, J., who had commented on some uncontra-
dicted testimony to a conversation with the accused : "I have heard the same kind of
statement by trial judges over and over again before 1892, and it never was thought an
impropriety or an unfair thing to do at that time when the mouth of the accused was
closed").
1914, Cutler v. State, — Ariz. — , 138 Pac. 1048 (rape under age). ,
1909, Mills V. State, 133 Ga. 155, 65 S. E. 368 (but there is no presumption of law).
1907, Lipsey v. People, 227 111. 364, 81 N. fe. 348. 1910, People v. McMahon, 244 111. 45,
91 N. E. 104 (the 'defendant not having taken the stand, the prosecutor's form of argument
as to uncontradicted evidence, "Is there a man or a woman on earth that ever came in here
and contradicted her in the least? No, sir," was held "near the danger line" ; this ruling
goes too far in hampering legitimate argument). 1912, People v. Donaldson, 255 111. 19,
99 N. E. 62 (absence of contradiction may be noticed in argument).
1904, Griffiths v. State, 163 Ind. 555, 72 N. E. 563 (larceny).
1911, State V. Kimes, 152 la. 240, 132 N. W. 180.
1909, State ». Lahore, 80 Kan. 664, 103 Pac. 106 (absence of contradictory evidence in
general).
1908, Com. V. Johnson, 199 Mass. 55, 85 N. E. 188 (failure to call witnesses to occupation,
etc.). 1909, Com. v. People's Express Co., 201 Mass. 564, 88 N. E. 420 (defendant cor-
poration's failure to call its own employees is open to inference).
1906, Perkins v. Terr., 17 Okl. 82, 87 Pac. 297 (larceny, but here the opinion so perversely
construes the principle as practically to shut the mouth of the prosecution in discussing
the accused's failure to produce evidence in general).
1914, State v. Knapp, — S. D. — , 144 N. W. 921.
1905, State v. Smokalem, 37 Wash. 91, 79 Pac. 603.
1907, Lam Yee v. State, 132 Wis. 527, 112 N. W. 425 (rape; defendant's failure to call
witnesses to deny his gonorrhea).
So also where other persons were present and one was possibly the doer, their denials
of their guilt allow an inference that the defendant was the only possible doer, and this is
distinct from the inference from his failure to deny :
1911, Com. V. Richmond, 207 Mass. 240, 93 N. E. 816.
[Note 2; add:]
Compare the rule as to presumptions in general (post, § 2511).
658
SELF-CRIMINATION § 2273
[Text, p. 3149, par. (3), 1. 3, in parenthesis; insert:]^
marital privilege, § 2243.
[Note 3, 1. 14; add:]
1911, Gillespie v. State, 5 Okl.'Cr. 546, 115 Pac. 620 (letters written by the defendant and
in his possession, called for by the prosecutor as a part of his case on trial, and the call
objected to ; held improper).
1906; Grunberg ». U. S., 145 Fed. 81, 89, C. C. A. (failure to produce invoices, etc.).
[Note 3, at the end ; add a new par. :]
The prosecution's request or notice to produce a document in the accused's possession
of which the prosecution desires to produce a copy, is of course not of itself a violation of
the privilege, for it is directed to another purpose, viz. tp satisfy the rule for using a copy,
and is indispensable for that purpose : Cases cited ante, § 1209, n. 2.
[NoUi; add:] |
1906, R. V. Blais, 11 Ont. L. R. 345 (the judge's comment on the accused's failure to call
F., jointly indicted but separately tried, and competent for either party, held not a viola-
tion of Can. St. 1893, c. 31, § 4, quoted ante, § 488).
1912, McElwain v. Com., 146 Ky. 104, 142 S. W. 234 (inference allowed).
1906, State v. Drake, — Or. — , 87 Pac. 137 (conspiracy to kidnap ; failure to call an in-
competent co-defendant not on trial ; the Court need not instruct the jury not to draw
inference).
[Note 5 ; add, under Accord :]
1913, State v. Larkin, 250 Mo. 218, 157 S. W. 600 ("We conclude that the case of State
V. Graves [cited infra] . . . ought to be overruled and no longer followed in this behalf" ;
careful and sensible opinion by Faris, J. ; this opinion was rendered in Div. No. 2).
1905, Powers v. State, 75 Nebr. 226, 106 N. W. 332. 1907, Russell v. State, 77 Nebr. 519,
110 N. W. 380 (but the inference does not necessarily apply to every fact not explicitly
denied by a party taking the stand).
1904, BaUiet v. U. S., 129 Fed. 689, 695, 64 C. C. A. 201 (the principle is conceded, but here
the trial judge's language in the instruction was held too broad).
1911, State V. Mattivi, 39 Utah 334, 117 Pac. 31.
[Noted; add, under Contra :]
1906, State v. Miles, 199 Mo. 530, 98 S. W. 25 (rule of State v. Graves followed, but here
held not applicable). 1909, State v. James, 216 Mo. 394, 115 S. W. 994 (following State v.
Graves ; cited more fully post, § 2276, n. 5).
It should be understood in other States that the foregoing Missouri rule was unsound, both
in principle and in policy, and is now abandoned, by State v. Larkin, supra.
[Note 6; add:]
1903, Tines v. Com., — Ky. — 77 S. W. 363.
1912, State v. Dodson, 23 N. D. 305, 136 N. W. 789.
[Note 8, par. 1 ; add, under Accord:]
1910, R. V. Ellis, 2 K. B. 747 (false pretences by an art-dealer to a customer; in a civil
suit for fraud in the same transaction, the now defendant had absented himself abroad
at the trial and failed to testify ; held admissible).
1909, Phillips V. Chase, 201 Mass. 444, 87 N. E. 755 (Com. v. Smith approved, but on the
extraordinary theory noted ante, § 2272, note 3).
1908, Wilson V. State, 54 Tex. Cr. 505, 113 S. W. 529.
559
§2273 PRIVILEGED TOPICS
[Note 8, par. 1 ; add, under Contra :]
1905, Newman v. Com., — Ky. — , 88 S. W. 1089 (failure to testify on application for bail ;
no authority cited ; could not the Court at least notice its own opposed ruling in Taylor
». Com., supra?).
1907, Masterson v. St. Louis Transit Co., 204 Mo. 507, 103 S. W. 48 (one judge diss.).
;L909, Garrett v. St. Louis Transit Co., 219 Mo. 65, 118 S. W. 68 (the same judge again dis-
senting).
§ 2275. Waiver ; (a) by Contract.
[Note 2; add:]
1904, Swedish-American Tel. Co. v. Fidelity & C. Co., 208 111. 562, 70 N. E. 768 (a contract
between a liability insurance company and the insured, giving to the former the right of
inspection of the latter's book^, is a waiver of the constitutional guarantee against unreason-
able searches and seizures).
§ 2276. Same : (b) by Volunteering Testimony on the Stand.
[Note 2; add:]
1906, State v. Bond, 12 Ida. 424, 86 Pac. 43 (murder of B. ; the wife of B., defendant's
paramour, was also indicted but separately tried ; the wife held privileged, when called by
the State, not to answer as to her complicity).
[Note 5 ; add :]
England : St. 1898, 61-2 Vict. c. 36, § 1 (accused may testify on his own behalf ; quoted
in full arde, § 488; sub-section (e) : "A person charged and being a witness in pursuance
of this Act may be asked any question in cross-examination notwithstanding that it
would tend to criminate him as to the offence charged").
1909, Chitson's Case, 2 Cr. App. 325,2 K. B. 945 (rape under age; cross-examination of the
accused as to his statement to the woman of his intercourse with another woman, allowed).
1909, Rowland's Case, 3 Cr. App. 277, [1910] 1 K. B. 458 (under St. 1898, § 1 (e), an ac-
cused who declines to give evidence for himself but afterwards gives evidence for a co-
defendant may be cross-examined to his own case).
Canada: 1904, R. v. Grinder, 11 Br. C. 370 (larceny; after cross-examination of the
accused, the trial judge asked him to write a specimen of his handwriting, to compare with a
memorandum in evidence; held inadmissible).
AUa : 1913, R. v. Hurd, Alta. S. C, 10 D. L. R. 475 (cross-examination to prior conviction ;
not decided).
United States : Ala. : 1906, Miller v. State, 146 Ala. 686, 40 So. 342 (Smith v. State fol-
lowed). 1906, Davis v. State, 145 Ala. 69, 40 So. 663 (liquor-selling).
Col.: 1909, People v. Smith, 9 Cal. App. 644, 99 Pac. 1111 (murder; questions about
another revolver excluded; the extent to which the cross-examination of the accused is
muzzled in this State is a travesty of principle).
Fla. : 1906, Pittman v. State, 51 Fla. 521, 41 So. 385 (the rules for cross-examination to
motives, etc., apply to an accused as to other witnesses).
Ida.: 1897, State v. Larkins, 5 Ida. 200, 47 Pac. 945 (cited ante, § 1890, n. 2).
Ky. : 1908, Welch v. Com., — Ky. — , 108 S. W. 863 (cross-examinaton to motive; privi-
lege allowed; unsound). 1914, Com. v. Phoenix Hotel Co., 157 Ky. 180, 162 S. W. 823
(voluntary testimony at a former trial of a separate but similar charge, held not a waiver).
La.: 1912, State v. Oden, 130 La. 59S, 58 So. 351 (liquor-selling; cross-examination to
other sales since the one charged, allowed, semble).
Mich. : 1904, People v. Gray, 135 Mich. 542, 98 N. W. 261 (cross-examination to the de-
fendant's false swearing as surety on a bond, allowed to affect credibility). 1912, People
V. Fritch, 170 Mich. 258, 136 N. W. 493.
560
SELF-CRIMINATION § 2276
[Note 5 — contirmed]
Minn. : 1908, State v. Kight, 106 Minn. 371, 119 N. W. 56 (""the general rule applicable
to all witnesses" applies).
Mo.: 1905, State v. Miller, 190 Mo. 463, 89 S. W. 377. 1909, State v. James, 216 Mo.
394, 115 S. W. 994 (following State v. Graves, and clinching the absurd rule which allows
a defendant to take the stand and say "I did not do it" and then stop, free from cross-
examination or comment). 1909, State v. Myers, 221 Mo. 598, 121 S. W. 131 (liberal rule
followed). 1910, State v. Keener, 225 Mo. 488, 125 S. W. 747 (liberal rule followed).
1910, State v. Mitchell, 229 Mo. 683, 129 S. W. 917 (State v. Miller followed).
Mont.: 1904, State v. Rogers, 31 Mont. 1, 77 Pac. 293.
Nev. : 1905, State v. Lawrence, 28 Nev. 440, 82 Pac. 614 (cross-examination to convictions
of felonies to affect credibility, allowed). 1913, State v. Urie, 35 Nev. 268, 129 Pac. 305.
N. Y.: 1911, People v. Brown, 203 N. Y. 44, 96 N. E. 367 (voluntary testimony, held to
permit cross-examination as to prior testimony inadmissible under the confession-rule;
erroneous on principle ; see ante, § 821, n. 4) .
N. C. : Rev. 1905, § 1634 (like Code 1883, § 1353). 1910, State v. Simonds, 154 N. C. 197,
69 S. E. 790 (manslaughter; cross-examination to ilUcit intercourse with the woman on
whom deceased was calling, allowed). "
N. D. : 1909, State v. Nyhus, 19 N. D. 326, 124 N. W. 71 (rape ; questions to the accused
as to former misconduct with a woman, excluded).
Or. : 1908, State v. Deal, 52 Or. 568, 98 Pac. 165 (cross-examination to the circumstances
of an alleged exculpation, allowed). 1914, State v. Jensen, — Or. — , 140 Pac. 740 (assault
with intent to rape; cross-examination of defendant to misconduct with a woman in an-
other State, excluded).
Pa. : this State has now permitted the following vicious piece of legislation to slip in and
thus tenderly to make it easier for astute defenders of villains to juggle their clients out
of legal danger : St. 1911, Mar. 15, p. 20 (An accused taking the stand "shall not be asked
and if asked shall not be required to answer any question tending to show that he has
committed or been charged with or been convicted of any offense other than the one where-
with he shall then be charged, or tending to show that he has been of bad character or rep-
utation" ; unless he has offered evidence of his good character or has testified against a
co-defendant).
S. D. : 1909, State v. La Mont, 23 S. D. 174, 120 N. W. 1104 (rape under age; cross-exam-
ination of defendant to other acts of intercourse with women of his family, excluded ; the
opinion does not distinguish the different questions involved).
U. S. ; 1904, Balliet v. U. S., 129 Fed. 689, 695, 64 C. C. A. 201 (Fitzpatrick v. U. S. fol-
lowed). 1906, Sawyer v. U. S., 202 U. S. 150, 26 Sup. 575 (murder on a vessel; cross-
examination allowable "with the same latitude as would be exercised in the case of an ordi^
nary witness, as to the circumstances connecting him with the crime"). 1912, Powers
v.. U. S., 223 U. S. 303, 32 Sup. 284 (in particular, may be cross-examined as to former
sworn statements).
Ut. : 1905, State v. Shockley, 29 Utah 25, 80 Pac. 865 (murder in robbery ; cross-examina-
tion as to other crimes, held improper; the ruling really proceeds on the principle of
§ 1810, are^e, for the claim of privilege was conceded on all the questions but one ; Bartch, J.,
dissenting, points out that Utah Rev. St. § 5015 is practically ignored by the majority ;
the decision makes confusion in the law, and helped to set free a confessed villain).
1910, State v. Vance, 38 Utah 1, 110 Pac. 434 (the above criticism on the Shockley case,
and that of § 21, n. 12, ante, reviewed and answered ; see the further comments ante, § 21,
n. 12). 1911, State «. Thome, 39 Utah 208, 117 Pac. 58 (rule c).
Wash. : 1913, State v. Peeples, 71 Wash. 451, 129 Pac. 108.
[NoU6; add:]
1907, Hays v. State, 51 Tex. Cr. Ill, 100 S. W. 926 (defendant may be recalled for questions
preliminary to impeachment by self-contradiction).
561
§ 2276 , PRIVILEGED TOPICS
[Note 6 ; add; at the end :]
The practical fairness and utility of construing the waiver liberally against the accused is
noted, from the standpoint of experience, in Mr. (Assistant District Attorney) Arthur
Train's important book, "The Prisoner at th|e Bar" (1906), pp. 163, 164.
[Note 7; add:]
1906, Re Mark, 146 Mich. 714, 110 N. W.' 61 (testimony at an ex parte complaint as wit-
ness, held not a waiver on subsequent trial of the accused before the committing magistrate).
But of course his voluntary testimony on the former occasion may iiself he used (subject
to the rule for confessions, anie, § 862) on the subsequent occasion : cases cited infra, n. 10.
Compare the rule for using an inference ivora former failure to testify (anle, § 2270).
[Note 8; add:]
Contra: 1908, State v. Simmons, 78 Kan. 872, 98 Pac. 277 ; this is the sounder view.
[Note 9, par. 1 ; correct :]
for "§2273," read "§2272."
[Noted; add:]
Under U. S. Rev. St. 1878, § 860 (quoted post, § 2281 ; now repealed) and U. S. St.
1898, c. 541, § 7 (bankruptcy ; quoted post, § 2281) providing that no testimony given,
in certain cases shall be used against the witness thereafter, the defendant does not, by
taking the s,tand, waive the privilege so as to permit the use against him (either by an in-
dependent offer of evidence or by his own. cross-examination) oi former answers made by him
in a situation covered by either of those statutes :
1908, Jacobs v. U. S., 1st C. C. A., 161 Fed. 694, 698 (cross-exammation of a bankrupt, on
a trial for fraudulent concealment, to his former answers on examination before the referee ;
held not allowable under St. 1898, c. 541, § 7). 1908, Alkon v. "U. S., 1st C. C. A., 163 Fed.
810 (conspiracy by a bankrupt; cross-examination to his testimony before the referee,
held not allowable, xmder Rev. St. § 860).
These rujings are apparently the only ones so far. On the present point of waiver, they
seem decidedly unsound.
[Note 10, par. 2; add:]
1907, Weaver v. State, 83 Ark. 119, 102 S. W. 713 (affidavit for continuance).
1907, People v. Willard, 150 Cal. 543, 89 Pac. 124 (petition for habeas corpus, and testimony
of the defendant on the hearing, admitted).
1911, State V. Kimes, 152 la. 240, 132 N. W. 180.
1907, State v. Taylor, 202 Mo. 1, 100 S. W. 41 ; and instances cited ante, § 278, n. 3.
The principle of waiver has also been invoked by some Courts to admit facts obtained
by the accused's voluntary surrender of chattels or submission to bodily inspection {ante, §§
2264, 2265).
§ 2277. Waiver: Cross-examination to Accused's Character, distinguished.
[Note 1; add:]
Ark. : 1905, Smith v. State, 74 Ark. 397, 85 S. W. 1123 ("subject to impeachment like any
other witness"). 1905, Carothers v. State, 75 Ark. 574, 88 S. W. 585 (cross-examination
to subornation of a witness).
Cal. : 1908, People v. Oliver, 7 Cal. App. 601, 95 Pac. 172 (the accused on cross-examina-
tion may be asked as to prior convictions for felony, in spite of P. C. § 1025, prohibiting
allusion to a former conviction when used to affect the sentence under § 196 ante; re-affirm-
ing People V. Arnold, supra, and holding that the re-enactment of P. C. | 1093 in 1905
as P. C. § 1025 did not change the rule).
662
SELF-CRIMINATION § 2280
[Note 1 — continued]
1911, People V. Walker, 15 Cal. App. 400, 114 Pac. 1009 (prior conviction of felony may be
asked).
Ind. Terr. : 1906, McCoy v. U. S., 6 Ind. Terr. 415, 98 S. W. 144 (a defendant "is subjected
to the same rules governing as to [sicf] other witnesses").
la.: 1911, State v. Brandenburger, 151 la. 197, 130 N. W. 1065 (cross-examination to past
marital misconduct, allowed).
Ky.: 1906, Henderson v. Com., 122 Ky. 296, 91 S. W. 1141 (cross-examination to convic-
tion for felony, allowed).
1910, Smith ». Com., 140 Ky. 599, 131 S. W. 499.
Md.: 1906, Lawrence ». State, 103 Md. 17, 63 Atl. 96 (rule of Guy v. State applied).
Mkh.: 1906, People v. DeCamp, 146 Mich. 533, 109 N. W. 1047 (record of conviction).
Miss.: 1905, Williams!). State, 87 Miss. 373, 39 So. 1006 (cross-examination to prior conviction).
Mo. : In Une 8, col. 2, p. 3160, "is forbidden," shoidd read, "was forbidden until the stat-
ute of 1895."
After State v. Smith, 125 Mo., insert: St. 1895, p. 284, Rev. St. 1899, § 4680 (quoted
ante, § 488; allows a witness' conviction of crime to be proved by cross-examination).
After State v. Dyer, 139 Mo., add: 1903, State v. Blitz, 171 Mo. 530, 71 S. W. 1027
(defendant may be cross-examined to prior convictions). 1903, State v. Thomhill, 174 id.
364, 74 S. W. 832 (similar ; compare the rule of §§ 987, 1270, ante). 1905, State v. Spivey,
191 id. 87, 90 S. W. 81 (similar ; but the question should ask directly for the conviction, and
not merely as to being in the penitentiary, etc.). 1905, State v. Woodward, ib. 617, 90
S. W. 90 (compare the rule of § 1270, ante; general moral character may be used). 1906,
State jj.Beckner, 194 id. 281, 91 S. W. 892 (general moral character may be used). 1907,
State V. Barnett, 203 Mo. 640, 102 S. W. 606 (State v. Beckner followed).
Nebr. : 1905, NickoUzack v. State, 75 Nebr. 27, 105 N. W. 895 (rape under age ; cross-
examination to improper conduct with another child excluded ; the opinion shows no clear
perception of the questions involved).
Nev. : 1905, State v. Lawrence, 28 Nev. 440, 82 Pac. 614 (cross-examination to convictions
of felony, allowed ; "the defendant was in a double capacity, that of defendant and that of
witness" ; State v. Cohn not cited).
Okl. : 1907, Harrold v. Terr., 18 Okl. 395, 89 Pac. 202 (he is "subject to be cross-examined
the same as any other witness").
Okl.: 1911, Cowan v. State, 6 Okl. Cr. 313, 114 Pac. 627 (cross-examination to prior con-
viction for felony or offence of moral turpitude, allowable).
Or. : 1903, State v. Miller, 43 Or. 325, 74 Pac. 658 (the cross-examination is restricted to
"matters concerning which he has testified in the first instance"). 1910, State v. Lem
Woon, 57 Or. 482, 107 Pac. 974 (state v. Bartmess followed).
§ 2279. Expurgation of Criminality ; (a) by Acqviittal, etc.
[Note 1, par. 2; add:]
Contra: 1912, Scribner v. State, 9 Okl. 465, 132 Pac. 933.
1913, Faucett v. State, — Okl. — , 134 Pac. 839.
The erroneous compulsion of an incriminating answer, by a justice of the peace or a
coroner, does not have the effect of an acquittal, so as to be pleaded in immunity on the
trial before a jury :
Scribner v. State, Faucett v. State, Okl., supra.
§ 2280. Same : (b) by Executive Pardon.
[Note 3; add:]
Contra, and demonstrating the unsoundness of the view taken above in the text : 1914,
Ex parte Muncy, — Tex. Cr. — , 163 S. W. 29 (the relator, a boy of 12, was summoned
563
§2280 PRIVILEGED TOPICS
[Nate 3 — continued]
before the grand jury inquiring into the death of the relator's father, who had been mur-
dered, either by the boy or by his mother; the boy claimed privilege; the prosecuting at-
torney promised immunity, which promise th6 trial judge by order affirmed ; the boy ac-
cepted and testified, incriminating his mother; later, on habeas corpus by the mother,
the boy again refused, on the ground that he had revoked his acceptance of immunity;
held (1) that the judge and prosecuting attorney had authority to guarantee immunity;
(2) that the relator's later retraction was immaterial, because his original consent was
immaterial ; Davidson, J., diss. ; elaborate opinions, with full examination of Texas prec-
edents ; the majority opinion of Harper, J,, seems conclusive).
§ 2281. Expurgation of Criminality by Statutory Amnesty or Indemnity;
(1) Statutes forbidding Prosecution, etc.
[Note 5 ; add :]
England : St. 1905, 5 Edw. VII, c. 7, § 2 (investigation into corrupt transactions by war-
contractors in South Africa ; immunity clause similar to that of St. 1863 for a person making
"a full and true disclosure," etc.).
Canada: AlheHa: St. 1910, 2d Sess., c. 3, Evidence Act, § 7 (like Can. St. 1893, c. 31,
§ 5, as amended, except that the last clause gives immunity "in any civil proceeding or in
any proceeding under any act or ordinance in force in Alberta").
British Columbia: St. 1903-4, 3 & 4 Edw. VII, c. 17, § 231 (election petitions; sub-
stantially like Rev. St. 1897, c. 67, § 228 ; but the certificate is to state merely that the
witness "had answered all such questions or such question") ; ib. §§ 292, 293 (corrupt
practices at elections; substantially like Dom. Rev. St. 1886, c. 158, §§ 9, 10). St. 1906,
6 Edw. VII, c. 23, § 155 (fraud in registration of land-title ; no person shall be privileged
by this act from discovery in any civil proceeding, "but no such affidavit shall be admis-
sible against any such person in evidence in any penal proceeding"). St. 1908, 8 Edw.
VII, c. 15, § 73 (Factories Act offences ; cited ante, § 488). St. 1912, 2 Geo. V, c. 17, § 6
(Forest Board ; witness not to be privileged, but no answer made shall be admissible in
evidence in any proceeding, except for perjury).
New Brunswick : St. 1905, c. 7, § 41 (offences under the factory act ; defendant's privilege
aboUshed; quoted ante, § 488). St. 1911, 1 Geo. V, c. 11, §§ 15, 16 (elections; certificate
of full disclostire to protect a witness ; like Ont. St. Rev. St. c. 9, § 189).
Nova Scotia: St. 1913, c. 37 (inserting a new § 45 a in Rev. St. 1900, c. 163, Evidence Act;
the new section is identical with Can. St. 1893, c. 31, § 5, as amended by St. 1898, c. 53).
Ontario: 1904, St. 1904, 4 Edw. VII, c. 10, § 21 (amends Rev. St. 1897, c. 73, § 5, quoted
ante, § 2252, n. 3, by enacting as in Dom. St. 1893, c. 31, § 5, unamended, supra, identically
down to the proviso, except by omitting the word "other" ; then continuing : "provided,
however, that if with respect to any question the witness objects to answer upon the ground
that his answer may tend to criminate him, and if but for this section tlie witness would
therefore have been excused from answering such question, then, although the witness
shall be compelled to answer, yet the answer so given shall not be used or receivable in
evidence against him on the trial of any proceeding under any act of the Legislature of
Ontario"). St. 1906, 6 Edw. VII, c. 47, § 18 (in trials for hquor offences, where a witness
was violating the law, the judge may on certain conditions "by certificate in that behalf
exempt such witness from prosecution for such unlawful act"). 1904, Attorney-General
V. Toronto J. R. Club, 7 Ont. L. R. 248 (using premises as a betting-house ; on motion for
production of documents by the defendant's president, held that the privilege applied,
under Ont. Rev. St. 1897, c. 73, § 5, quoted ante, § 2252, and that Can. Dom. St. 1893, c.
31, § 5, as amended in 1898 and 1901, quoted supra in this note, was not applicable in On-
tario). 1906, Chambers v. Jaffray, 12 Ont. L. R. 377 (claim of privilege by a defendant
in libel resisting discovery; the above statute 1904, c. 10, § 21, held to apply to parties in
664
SELF-CRIMINATION § 2281
I
[Note 5 — continued]
such situation, and not only to ordinary witnesses, so as to take away the privilege). St.
1908, 8 Edw. VII, c. 4, § 49 (election offences; method of immunity provided). St. 1909,
c. 43, § 7 (like St. 1904, c. 10, § 21, with slight changes). St. 1913, 3-4 Geo. V, c. 43, § 191
(municipal elections; St. 1903, 3 Edw. VII, c. 19, § 255, re-enacted with amendments).
Prince Edward Island : St. 1910, c. 3, § 46 (election trials ; witness compellable, but no an-
swer made after claim of privilege "shall be used in any criminal proceeding against any
such person," except for perjury, if the trial judge gives a certificate that claim was made
and full and true answer given).
Saskatchewan: St. 1907, c. 12, Evidence Act, § 26,(like Can. St. 1893, c. 31, § 5, as amended
by St. 1898, c. 53).
1913, Bartleman v. Moretti, Sask. S. C, 9 D. L. R. 805 (the Canada Evidence Act, § 5, iden-
tical with Sask. Evid. Act, Rev. St. c. 60, § 27, "entirely displaces and removes the reason
for not ordinarily allowing discovery in actions for the recovery of penalties"; here, a
forfeiture of money paid under a land contract).
Yukon: Consol. Ord. 1902, c. 76, § 110 (liquor offences; like Man. Rev. St. 1902, c. 101,
§ 202) ; ib. § 115 (liquor offences ; provision similar to Can. Rev. St. 1886, c. 158, §§ 9, 10).
United States: Alabama: St. 1907, No. 31, p. 105, § 3 (railroad passes; witness before
grand jury compellable, but "no witness shall be prosecuted," etc). St. 1909, No. 191,
Spec. Sess. p. 63, Aug. 25, § 12 (Uquor prohibition; witnesses compellable before the
grand jury, "but a witness must not be prosecuted for any offense as to which he testifies
before the grand jury"). § 15 (no agent or principal, etc., shall be excused by reason of the
privilege from testifying against principal or agent, etc., but no such testimony "shall in
any manner in any prosecution be used as evidence directly or indirectly against him,"
nor shall he be "thereafter prosecuted for any offense so disclosed by him"). § 21, par. 13
(similar, for a person testifying in any proceeding for seizure of liquors, "excepting one who
answers claiming some right, title, or interest in the liquors so seized"). § 29^ (similar
blanket clause for any person "who testifies with respect to any unlawful act under this
statute," etc., St. 1911, No. 259, p. 249, Apr. 6, § 32 (dispensary liquor law; like § 12 of St.
1909). St. 1911, No. 479, p. 421, Apr. 4, § 29 (primary elections; answer compellable as
to an illegal vote, and "if he make full true answers which may tend to criminate him, he
shall not be prosecuted for voting at such election").
Arkansas: St. 1911, c. 1, Spec. Sess., p. 495, June 29, § 94 (tax commission; witnesses
compellable to answer, but "no person shall be prosecuted," etc., for any matter "concern-
ing which he may testify," etc., except for perjury).
California : St. 1905, Mar. 10, c. 95 (amending St. 1893, Feb. 23, § 32, supra, by substituting
the following : "If such person demands that he be excused from testifying on the ground
that his testimony may incriminate himself, he shall not be excused, but in that case the
testimony so given shall not be used in any prosecution or proceeding, civil or criminal,
against the person so testifying, except for perjury in giving such testimony, and he shall
not thereafter be liable to indictment or presentment by information, nor to prosecution or
punishment for the offence with reference to which his testimony was given. No person
shall be exempt from indictment, presentment by information, prosecution or punishment
for the offence with reference to which he may have testified as aforesaid, when such person
so testifying fails to ask to be excused from testifying on the ground that his testimony may
incriminate himself, but [sicf and] in all such cases the testimony so given may be used in
any prosecution or proceeding, civil or criminal, against the person so testifying. Any per-
son shall be deemed to have asked to be excused from testifying under this section, unless,
before any testimony is given by such witness, the judge, foreman or other person presiding
at such trial, hearing, proceeding or investigation shall distinctly read this section to such
witness, and the form of the objection by the witness shall be immaterial if he in substance
makes objection that his testimony may criminate himself, and he shall not be obliged to
object to each question, but one objection shall be sufficient to protect the witness from
prosecution for any offence concerning which he may testify upon such trial, hearing, pro-
565
§2281 PRIVILEGED TOPICS
[Note 5 — continued]
ceeding or investigation"). St. 1907, c. 14, § 55 (public utilities act; witness compellable,
but "no person shall be prosecuted" etc.). St. 1911, c. 14, p. 18, Dec. 23, § 55 (public
utilities commission ; witnesses to be compellable, but no person shall be prosecuted etc.
for "any act, transaction, matter, or thing concerning which he shall under oath have tes-
tified or produced documentary evidence," except for perjury, and except that this shall be
construed "as in any manner giving to any public utility immunity of any kind").
Connecticut: St. 1911, c. 128, p. 1387, July 11, § 9 (public service corporations; witness
compellable to testify etc. before the commission; but it he objects and is compelled, "he
shall not be prosecuted for any matter concerning which he has so testified ").
Florida: St. 1905, No. 45, § 2 (bribery of officials ; privilege abolished for the briber; "but
if he does testify, nothing said by him in his testimony shall be admissible in evidence in any
civil or criminal action against him"). St. 1905, No. 29 (bribery, gaming, and liquor
offences ; privilege abolished, but "no person shall be prosecuted or subjected to any penalty
or forfeiture, for or [on] account of any transaction, matter or thing concerning which he
may so testify or produce evidence, documentary or otherwise, and no testimony so given
or produced or given [sic f omit] shall be received against him upon any criminal investiga-
tion or proceeding"). '
Georgia: St. 1906, c. 451, § 1, amending Cr. C. 1895, § 629 (in election offences, any offender
not on trial shall be competent and compellable ; "and nothing then said by such witness
shall at any time be received or given in evidence against him in any prosecution" except
for perjury therein). St. 1906, c. 450, § 3 (stock gambling offences; "no person shall be
excused" from testifying to an offence hereunder, "but any discovery made by a witness
upon such examination shall not be used against him in any penal or criminal prosecution,
and he shall be altogether pardoned of the offence so done or participated in by him").
Hawaii: St. 1913, No. 42, p. 48, Mar. 28, § 6 (Financial Commission for Hawaii Co. ; wit-
nesses compellable, but "no prosecution can afterwards be had against him for any offense
concerning which he has testified "). St. 1913, No. 101, p. 142, Apr. 23, § 6 (bastardy ; the
mother to be compellable, "but no prosecution shall afterwards be had against her" for
any matter testified to).
Idaho : St. 1905, Mar. 7, p. 416 (bribery ; no person testif jdng for the State fs to be excused,
but "no person shall be prosecuted or punished on account of any transaction, manner, or
thing concerning which he may be so required to testify or produce evidence," except for
perjury therein). St. 1911, c. 15, p. 30, Feb. 18, § 10 (liquor prosecutions; witness com-
pellable, " but no person shall be prosecuted or punished on account of any transaction or
matter or thing concerning which he shall be compelled to testify," nor shall his testimony
be used etc.).
Indiana: St. 1905, c. 53, § 12 (privilege abolished for witnesses before the railroad com-
mission ; " the claim that any such testimony may tend to criminate the person giving it
shall not excuse such witness from testifying, but such evidence or testimony shall not
be used against such person on the trial of any criminal proceeding"). St. 1905, c. 129, § 54
(privilege abolished for witnesses before investigations by common councils, for offences
under this act or ordinances thereunder ; "but such testimony shall not be used against such
witness in any criminal prosecution"). St. 1905, p. 481, § 3 (bribery at elections ; a guilty
person is compellable, "but such evidence shall not be used against him in any prosecution
for such or any other offence growing out of the matters about which he testifies, and he
shall not be liable to trial by indictment or information or punished for such offence"). St.
1905, p. 584, Criminal Code, §§ 236, 237, 250 (re-enact Rev. St. 1897, §§ 1890, 1891, 1904,
supra). St. 1905, p. 584, Criminal Code, § 253 (substitutes for "discovery . . . under
oath" the word "evidence," in re-enacting Rev. St. 1897, § 1907, supra). St. 1907, c. 243,
p. 490, Mar. 11, § 11 (anti-trust law, civil remedies; witness who is officer etc. of corpora-
tion, to be compellable, but his "testimony shall not be used against such witness or party
in any criminal prosecution"). St. 1907, c. 282, p. 627, Mar. 12, § 49 (primary elections,
accomplice "informing and testifying shall not be thereafter prosecuted for his guilt in con-
666
SELF-CRIMINATION § 2281
[Note 5 — continued]
nection with the transaction") . St. 1913, c. 192, p. 656, Mar. 12, § 8 (State fire-marshal's
powers; witness compellable, but "such evidence or testimony shall not be used" etc., nor
shall such witness "be thereafter prosecuted for any crime concerning which he has been
compelled to testify").
Iowa : St. 1907, c. 50, § 4 (primary elections ; privilege denied, but " any matter so elicited shall
not be used against him, and said witness shall not be prosecuted," etc.) ; c. 73, § 3 (political
contributions by corporations; privilege denied, "and no person having so testified shall
be liable" etc.). St. 1907, c. 112, § 3 (railroad passes, privilege denied, "but no person
having so testified shall be liable" etc.) ; c. 183, § 2 (corrupt offers to agents etc. ;
privilege denied, but "no person shall be liable to any criminal prosecution" etc). St.
1913, c. 15, p. 20, Apr. 17 (bids for public supplies; witnesses compellable, but not to be
prosecuted). St. 1913, c. 21, p. 25, Apr. 19 (similar, for contracts with municipal govern-
ments).
Kansas: St. 1897, c. 265, § 10 (anti-trust law; "any person subpoenaed or examined shall
not be liable to criminal prosecution for any violation of this act about which he may testify ;
neither shall the evidence of such witness be used against him in any criminal proceeding").
St. 1905, c. 209 (gambling offences ; phrasing of above statute changed, and a proviso added
negativing exemption from perjury-penalty). St. 1905, c. 340, § 10 (railroad rate inquiries
by the Railroad Commissioners ; the claim of privilege shall not be allowed, but the testi-
mony "shall not be used against such person" in criminal trials, "nor shall he be liable to
criminal prosecution for or on account of any transaction, matter, or thing concerning which
he may so testify"). St. 1907, c. 259, p. 410, Mar. 9 (anti-trust laws, civil remedies; de-
fendant compellable to answer, but answers shall not be used in a criminal prosecution,
nor shall he be "liable to criminal prosecution for any offense about which his answers or
books or papers produced would be evidential"). St. 1909, c. 164, p. 302, Feb. 23, § 7
(intoxicating liquors; witness compellable, but "no person shall ,be prosecuted" for any
matter thus compelled to be testified to, and no such testimony shall be used against him).
St. 1911, c. 237, p. 412, Mar. 3, § 12 (removal of public officers; like St. 1909, c. 164). St.
1911, c. 238, p. 417, Mar. 14, § 17 (public utilities commission; witnesses compellable, but
"no person having so testified shall be prosecuted ... on account of any transaction,
matter, or thing concerning which he may have testified or produced any documentary evi-
dence," except for perjury).
Kentucky: 1911, Bentler v. Com., 143 Ky. 503, 136 S. W. 896 (Stats. 1899, § 1973, applied,
and held constitutional).
Maryland: St. 1908, c. 122, p. 123, Apr. 25 (amending Pub. G. L. Art. 33; adding §§ 174,
175 ; to the Elections law ; witness to be compellable, "but his answer, or the thing produced
by him, shall not be used in any proceeding against him," except for perjury).
Michigan: St. 1907, No. 182, p. 244, June 18 (political contributions by insurance com-
panies; witnesses compellable, but "no person shall be prosecuted or subjected to any
penalty or forfeiture" for any matter so testified to, and no testimony so given shall be
used against him, etc.). St. 1907, No. 312, p. 417, June 28, § 27 (railroad commission ;
witnesses compellable, but "no person, having so testified shall be prosecuted" etc., except
for perjury). St. 1911, No. 2, p. 4, Feb. 25 (amending St. 1899, No. 255, § 11 — anti-trust
law — by inserting § 11a; witness to be compellable, but "no person shall be prosecuted"
etc. for any matter to which he may testify at such trial, and "no testimony so given by
him" shall be used against him etc. ; " provided that immunity shall extend only to a nat-
ural person who in obedience to a subpoena gives testimony under oath or produces
evidence documentary or otherwise under oath" ; also excepting perjury).
Minnesota : St. 1905, c. 192 (illegal sale of Hquor ; on examination of witnesses before a
justice, "no testimony given upon such a hearing shall be in any manner used to the prej-
udice of the witness giving the same").
^Mississippi: 1910, Cumberland T. & T. Co. «. State, 98 Miss. 159, 53 So. 489 (Code § 5018,
giving immunity to corporations producing documents upon trial for violation of the anti-
567
§2281 PRIVILEGED TOPICS
[Note 5 — continued]
trust laws, applied). St. 1912, c. 251, p. 318, Mar. 13 (repealing-Code 1906, § 5018, which
exempted corporations from immunity on production of documents, etc).
Missouri : St. 1907, p. 382, Mar. 19 (pools and trusts ; amending Rev. St. 1899, § 8983 ; by
adding that witnesses are compellable, but "no such witness shall be liable to prosecution"
etc. for any matter "concerning which he may testify or produce books or papers"). St.
1907, p. 383, Mar. 19 (amending Rev. St. 1899, c. 143, § 8989 ; by substituting after "sten-
ographer," that witnesses are compellable, but "no such witness shall be liable" etc. as in
the foregoing statute). St. 1913, p. 549, Mar. 29 (pools and trusts; repealing Rev. St.
1909, art. 1, c. 98, and substituting; § 10311 makes witnesses compellable, but "no person
shall be subject to prosecution" etc. as in St. 1907, p. 382, Mar. 19, supra). St. 1913,
p. 556, Mar. 17 (public service commission; by § 125, witnesses are compellable, but "no
person shall be prosecuted" etc. for any matter " concerning which he shall under oath have
testified or produced documentary evidence," except for perjury ; and this is not to give
"unto any corporation immunity of any kind").
Montana: St. 1913, c. 52, p. 88, Mar. 4, § 22 (public service commission; witnesses compel-
lable, but "no person having so testified shall be prosecuted" etc. for any matter "concern-
ing which he may have testified or produced any documentary evidence," except for perjury) .
Nebraska: St. 1905, c. 162, § 21 (trusts and monopolies; in proceedings under this act,
no person shall be excused on the present grounds) ; ib. § 22 (immunity clause similar to
that of Comp. St. § 5343d, supra). St. 1907, c. 90, p. 311, § 2 (k) (State railway commis-
sion; witness compellable, "but such evidence or testimony shall not be used against such
person on the trial of any criminal proceeding"). St. 1913, c. 154, p. 393, § 152 (State
insurance board; witnesses compellable, "but no person shall be prosecuted for any act
concerning which he shall be compelled so to testify," except for perjury ; this is the neatest
of all the various phrasings used). St. 1913, c. 179, p. 535, § 19 (State commissioners of
State institutions ; witnesses compellable, but "evidence given by any witness" etc. "shall
not be used" against him, but he shall not be exempt from perjury, etc.).
Nevada: St. 1909, c. 44, p. 73, § 17 (State railroad commission; witnesses compellable,
but "no person having so testified shall be prosecuted" etc., except for perjury).
New Jersey: St. 1906, c. 206, § 6 (bribery, etc., at elections; privilege abolished, but, "no
person shall be prosecuted or subjected to any penalty or forfeiture for or on account of
any transaction, matter, or thing concerning which he may so testify or produce evidence,
documentary or otherwise," and the testimony is not to be used against him in a criminal
proceeding). St. 1906, c. 208, § 5 (bribery in general ; privilege abolished ; but "no person
called to testify in any proceedings under this act shall be liable to a criminal prosecution,
either under this act or otherwise, for any matters or causes in respect to which he shall be
examined or to which his testimony shall relate, except to a prosecution for bribery com-
mitted in such testimony"). St. 1911, c. 188, p. 329, § 32 (election offences ; witness com-
pellable, "but the testimony so given shall not be used," etc., and "a person so testifying
shall not thereafter be liable" etc., and "may plead or prove the giving of testimony ac-
cordingly in bar" etc.).
New Mexico: St. 1909, c. 83, p. 222, § 29 (game and fish laws ; "any participant in a vio-
lation thereof, when so requested by the district attorney" etc., may testify, "and his
evidence so given shall not be used against him in any prosecution for such violation").
St. 1912, c. 78, p. 137, § 6 (State corporation commission ; witnesses compellable, but "such
testimony or evidence shall not be used" against him).
New York: Consol. L. 1909, c. 20, St. 1909, c. 25, as amended St. 1910, c. 394, p. 724 (gen-
eral business law; witnesses to be compellable, but "no person shall be prosecuted or sub-
jected to any penalty or forfeiture" for any matter testified to; and no such testimony
shall be used, etc.). Consol. L. 1909, c. 40, St. 1909, c. 88, § 583 as amended by St. 1910,
c. 395, p. 725 (inserting a new § 584; conspiracies; like the foregoing St. 1910, c. 394).
Consol. L. 1909, c. 31, St. 1909, c. 36, as amended by St. 1909, c. 514, § 3 (bureau of indus-
tries and immigration ; inserting a new § 154 ; "no person shall be prosecuted " etc., except
568
SELF-CRIMINATION § 2281
[Note 5 — continued]
for perjury). St. 1,911, c."647, p. 1496, § 25 (conservation department; witnesses compel-
lable, but "no person shall be prosecuted," etc., except for perjury ; but this is not to give
"unto any corporation immunity of any kind"). St. 1912, c. 444, p. 883, § 4 (amending
St. 1911, c. 647, by inserting § 35; conservation department; like St. 1911, c. 647, § 25).
St. 1913, c. 236, p. 425 (amending Consol. L. c. 40, St. 1909, c. 88, by adding a new § 395;
bucket-shop offences; witnesses compellable, but "no person shall be prosecuted" etc.,
and such testimony shall not be used against him, etc.). St. 1914, c. 360, § 3 (amending
§ 22 of St. 1909, c. 17, by changing the number to § 16 ; debtor's assignment for creditors ;
no witness or party to be excused, etc., but "such answer shall not be used against him in
any criminal action or proceeding"). St. 1914, c. 518, § 31 (personal loan brokers; a
violator of the Act is compellable; but "the testimony so given shall not bp used" etc.,
"nor shall a person so testifying be thereafter liable to indictment" etc.)
North Carolina: Rev. 1905, § 2459 (like St. 1897, p. 85, c. 35; the other statutes of 1895
and 1897, supra, cannot be traced in Rev. 1905 ; but the rule of St. 1895, c. 159, is covered
by Rev. 1905, § 4407, infra). Rev. 1905, § 1688, Code 1883, § 2843 (in gaming offences, the
privilege ceas^; but the testimony "shall not be used against him in any criminal prose-
cution" therefor). Hev. 1905, § 1637 (like Code 1883, § 1215). Rev. 1905, § 1638, St.
1893, c. 461, § 5 (in lyriching investigations the privilege ceases, "but no discovery made
by such witness upon any such examination shall be used against him in any court or in
any penal or criminal prosecution, and he shall when so examined as a witness for the
State be altogether pardoned of any and all participation in any crime of lynching concern-
ing which he is required to testify." Rfiv. 1905, § 3201, repeats this, the last clause being
slightly broader). Rev. 1905, § 1620 (like Code 1883, § 1349). Rev. 1905, § 4280, Code
1883, § 2646 (privilege abolished for offences concerning unlawful sale of liquor, keeping
of games of chance, giving of entertainments, etc., near the State University; but the
testimony "shall not be used against him in any criminal prosecution on account of such
participation"). Rev. 1905, § 4407 (privilege ceases for a voter not qualified, on inquiry
as to his vote; but "any witness making such discovery shall not be subject to criminal
or penal prosecution for having voted at such election"). 1904, Re Briggs, 135 N. C. 118,
47 S. E. 403 (Cr. Code, § 1215, applied).
North Dakota: St. 1909, c. 128, p. 138, § 17 (fish and game law; "the participant in the
violation thereof may testify as a witness against any other person violating the same,
without incriminating himself in so doing. The evidence so given shall not be used" etc.
This is a good example of how not to phrase such an Act).
Ohio : St. 1904, Apr. 23, p. 332 (liquor offences ; Rev. St. § 7285, supra, repealed ; instead,
"if a person called to testify" in such a case "disclose any fact tending to criminate him-
self in any manner punishable by said sections or act, he shall thereafter be discharged from
all liability to prosecution or punishment for such matter of offence" ; this seems to be the
best formula yet invented for the purpose). St. 1906, Apr. 2, p. 313 (amending St. 1898,
Apr. 19, the anti-trust law, by adding § 6a; the privilege is abolished, "but no individual
shall be prosecuted or subjected to any penalty for or on account of any transaction, matter
or thing concerning which he may so testify or produce evidence, documentary or other-
wise"). St. 1910, p. 100, Apr. 14 (Gen. Code, § 12824 ; bribery ; a new § 12824-1 inserted ;
an offender is to be compellable against another offender, "but no individual shall be prose-
cuted" etc. for any matter on which he may testify etc.). St. 1910, p. 210, May 13 (abor-
tion, under Gen. Code, § 12412 ; enacting a new § 12412-1 ; the woman not to be prose-
cuted for comphcity, if she testifies).
Oregon: St. 1909, c. 3, p. 15, § 52 (corrupt electoral practices; witnesses compellable,
but no such evidence "shall be offered or used against him," etc., "or any evidence that is
the direct result of such evidence or information," except for perjury therein). St. 1911,
c. 279, p. 483, § 59 (public utiUties commission ; witnesses compellable, but "no person hav-
ing so testified shall be prosecuted" etc., except for perjury, and this only when "in obe-
dience to a subpoena" he "gives testimony under oath").
569
§ 2281 PRIVILEGED TOPICS
[Note 5 — continued]
Pennsylvania : St. 1913, No. 136, May 9, p. 198 (examination of judgmenTt debtor : the
debtor to be compellable, "but he shall not be prosecuted" etc., except for perjury).
St. 1913, No. 241, May 28, p. 358 (the rule of two witnesses etc. to overcome a responsive
answer "is hereby abolished" ; saving the rule for proof to reform or overthrow a written
instrument). '
Rhode Island: St. 1911, c. 714, p. 132 (life insurance rebates; witnesses compellable,
"but no person shall be prosecuted" etc., and "no testimony so given or produced shall be
received against hini," etc.).
Soidh Dakota: St. 1909, c. 224, p. 348, § 11 (anti-trust law; witnesses compellable, "but
the testimony so taken shall not be used" etc.).
Tennessee : St. 1897, c. 14, § 6 (election offences ; an offender may be compelled to testify
at any trial, etc., but the testimony shall not be used, etc., and "a person so testifying shall
not thereafter be liable . . . for the offence with reference to which his testimony was
given, and may plead or prove" the giving of it in bar). 1904, Lindsay v. Allen, 113 Tenn.
517, 82 S. W. 648 (St. 1897, c. 14, § 6, in its compulsory clause, does not apply to a com-
missioner's examination in a contested election proceeding). St. 1913, 2d Extra Sess.,
c. 1, p. 659, § 12 (liquor offences; witness compellable, but "no disclosure or discovery
made by such person shall be used against him" etc.) ; § 13 (an accomplice testifying "shall
be exempt from prosecution" for the offence).
Texas: St. 1903, Mar. 31, c. 94, § 15, p. 119 (anti-trust law; a witness is compellable to
testify and "shall not be liable for prosecution"). 1907, Ex parte Andrews, 51 Tex. Cr.
79, 100 S. W. 376 (foregoing statute held applicable by its terms to an examination before
a justice only, not before a grand jury). St. 1907, c. 7, p. 6 (legislative investigation of
public officers; witnesses compellable, but the testimony "shall not be used against him,"
etc., "nor shall any criminal action or proceeding be brought against such witness on ac-
count of such testimony" except for perjury). St. 1907, c. 8, p. 16, § 7 (anti-trust law;
witness for the State "shall not be subject to indictment" etc. for matters testified to).
St. 1913, Spec. Sess., c. 31, p. 62, § 16 (liquor laws; an accomplice "shall be exempt from
prosecution for any offense under this law about which he may be required to testify").
United States: St. 1903, Fed. 25, c. 755 (Appropriation Act), 32 Stat. 904 (similar to St.
1893, supra, for "any proceeding, suit, or prosecution" under certain enumerated acts,
including the Anti-Trust law). St. 1906, Mar. 21, Joint Res. 11, Stat. L. vol. 34, p. 824
(Joint Res. 8, ib. p. 823, amended ; in the Interstate Commerce Commission's investiga-
tions into raiboad discriminations and monopolies, all the immunities, etc., conferred by
the act of Feb. 11, 1893, "shall also apply to all persons who may be subpoenaed to testify
as witnesses or to produce documentary evidence" under the authority conferred). St.
1906, June 30, c. 3920, Stat. L. vol. 34, p. 798 (quoted ante, § 2259 ; aboUshing the privilege
for corporations). St. 1910, May 7, c. 216, No. 168, 61st Cong. p. 352 (Rev. St. § 860,
repealed).
Virginia: St. 1902, Extra, c. 22 (bribery offences; "nor shall any witness called by the
Court or Commonwealth's attorney and giving evidence for the prosecution, either before
the grand jury or the court in such prosecution, be ever proceeded against for any offence
of giving, or offering to give, or accepting a bribe committed by him at the time and place
indicated in such prosecution ; but such witness shall be compelled to testify").
1912, Flanary v. Com., 113 Va. 775, 75 S. E. 289 (in a prosecution under Code § 3853,
concerning elections, a witness who had testified before a grand jury under Code § 145o,
containing an immunity provision as to election offences, was held to have obtained im-
munity and therefore to be compellable; precise point of dispute not clear).
Washington: St. 1907, c. 60, p. 99 (bribery and corruption offences; any offender "shall
be a competent witness against any other person so offending," and is compellable; "but
the testimony so given shall not be used" etc.; and the person "shall not thereafter be
liable to indictment" etc. ; but this Act does not apply to proceeding before a commit-
ting magistrate or justice of the peace). St. 1909, c. 249, p. 986, § 316 (anarchistic propa-
570
SELF-CRIMINATION § 2281
[Note 5 — continued]
ganda ; no person to, be excused on investigation of such offences on the ground of self-
crimination) ; § 78 (bribery, etc. ; re-enacting St. 1907, c. 60). St. 1909, c. 249, p. 900,
§ 39 (criminal Code; wherever in this Code "it is provided that a witness shall not be ex-
cused from giving testimony tending to criminate himself, no person shall be excused"
on that ground, but "he shall not be prosecuted or subjected" etc., for any matter so
testified to, except for perjury). St. 1909, c. 249, p. 958, § 228 (gambling, etc. ; no person
to be excused "from giving testimony concerning any offense committed by another .
by reason of his having bet or played at the prohibited device") ; § 171 (similar provision
for dueling offences). St. 1911, c. 117, p. 589, § 76 (public service commission; witnesses
compellable, "but such evidence or testimony shall not be used" etc., except for perjury).
St. 1913, c. 120, p. 356, § 13 (game law offences ; "a participant in the violation thereof may
testify as a witness against any other person violating the same, without incriminating him-
self in so doing," but the evidence shall not be used etc.).
Wisconsin: St. 1905, c. 149 (in prosecutions under Stats. 1898, §§ 4352, 4583, the privilege
is abolished, "when so ordered to testify by a court of record or any judge thereof; but
no person shall be prosecuted or subjected to any penalty or forfeiture for or on account
of any transaction, matter, or thing concerning which such person may so testify or produce
evidence," except for perjury therein). St. 1905, c. 447, § 1 (no railroad corporation shall
be excused from producing documents, etc., in any civil action for penalties, etc., on the
ground that the document, etc. "may subject it to a penalty or forfeiture," or be excused
"from making a true answer under oath by and through its properly authorized officer or
agent" on such a ground) ; ib. § 2 (no officer or employee of any railroad corporation shall
be excused from testifying or producing documents, etc., on the above ground; but no
such person shall be prosecuted, etc. ; immunity clause as in St. 1905, c. 149, supra). St.
1909, c. 528, Stats. § 1435 f — 22 (midwifery offences ; witness compellable, but "no person
shall be prosecuted " for any matter thus testified to, except for perjiKy). St. 1913, c.
773, p. 1321, § 106 (adding a new § 4475-2 to Stats. ; bribery as to State funds deposit ;
witness compellable, but "no testimony so given shall be in any manner used" etc., except
for perjury).
[iVoielO.p. 3178; add:]
and in the opinion of Brown, J., in Hale v. Henkel, 201 U. S., 43, cited infra, note 11.
[Nate 11; add:]
1904, State v. Jack, 69 Kan. 387, 76 Pac. 911 (St. 1897, quoted supra, n. 5, exempting from
prosecution tor offences against the anti-trust law, effectually annuls the privilege).
1904, Re Briggs, 135 N. C. 118, 47 S. E. 403 (Brown v. Walker followed, sanctioning the
effectiveness of Cr. Code, § 1215 ; Douglas, J., specially concurring with hesitation, and
Walker, J., also specially concurring).
1904, Interstate Commerce Commission v. Baird, 194 U. S. 25, 24 Sup. 563 (order of the
Circuit Court requiring production of certain contracts, etc., at the petition of the Com-
. mission in a complaint by the district attorney alleging violations of St. 1887, Feb. 4, as
amended by St. 1893, Feb. 11, as to discriminations, etc., and asking for the enforcement
of the statute by injunction to desist from the violations; the witness, an official of a
defendant corporation, was ordered to produce, since the immunity of the statute would
annul the privilege; Brown v. Walker followed). 1905, Jack v. Kansas, 199 U. S. 372,
26 Sup. 73 (following Brown v. Walker ; accepting a decision of the Kansas Court which
held sufficient the immunity of Kan. St. 1897, c. 265, § 10). 1905, Re Hale, 139 Fed. 496,
501, C. C. (under U. S. St. 1903, Feb. 19, the immunity produced by testimony "in any pro-
ceeding," etc., applies to testimony before a grand jury). 1906, Hale -o. Henkel, 201 U. S.
43, 26 Sap. 370 (Brown s. Walker) supra, approved and followed without dissent ; here
applying the rule to testimony and documents obtained under the immunity-clause of U. S.
St. 1903, Feb. 25, supra, n. 5).
571
§2281 PRIVILEGED TOPICS
[Note 11 — continued]
1905, Murphy v. State, 124 Wis. 635, 102 N. W. 1087 (Brown v. Walker followed, applying
Stats. 1898, § 4078, amended by St. 1901, c. 85, cited supra, n. 5).
[Text, p. 3178, at the end of first paragraph; add:]
It may also be noted that, as a necessary deduction from the principle of
§ 2259, ante, an immunity granted to a person who testifies or produces docu-
ments is sufficient to destroy the privilege for him, even though the facts ob-
tained from him serve to incriminate a third person, — in particular, a corpora-
tion whose agent or officer the witness is.^^"
^ 1906, Hale v. Henkel, 201 U. S. 43, 26 Sup. 370. ■
Conversely, compulsory immunity to the officer or agent does not benefit the cor-
porations : Ind. St. 1907, c. 243, p. 490, Mar. 11, § 11 (anti-trust law, civil remedies; wit-
ness compellable, who is agent etc. of corporation, to be immune from prosecution, but
"such exemption shall be personal to such witness and shall not exempt or render immune
the corporation" etc.).
[Note 13, par. 1 ; add :]
1902, U. S. V. Kimball, 117 Fed. 156, 163 (nature of compulsion, considered).
[Note 13, par. 2 ; at the end, add :]
A plea in bar has also been tried :
1910, Heike v. U. S., 217 U. S. 423, 30 Sup. 639 (the defendant pleaded specially in bar
that he had obtained statutory immunity by testifying before the grand jury ; this plea
failed, the trial Court directing a verdict on it ; the defendant then, by leave pleading over,
pleaded not guilty ; before trial of this plea, the trial Court entered judgment subject to
the leave to plead ; on the question whether this judgment was reviewable in the Supreme
Court as a final judgment, the argument was made that the statutory immunity was meant
to prevent prosecution, and hence a judgment on a plea in bar if favorable must be final ;
this argument was held insufficient to affect the usual rule as to Federal judgments on writ
of error).
[NoU 14; add:]
Ohio: 1913, State v. Cox, 87 Oh. St. 313, 101 N. E. 135.
U. S. : 1906, Edelstein v. U. S., C. C. A., 149 Fed. 636, 642 (good opinion by Adams, J. ;
Philips, J., diss.).
1908, Wechsler ii. U. S., 2d C. C. A., 158 Fed. 579 (under U. S. St. 1898, c. 541, § 7, following
Edelstein v. U. S.).
1910, U. S. V. Brod, C. C. N. p. Ga., 176 Fed. 165 (under U. S. St. 1898, c. 541, § 7, Bank-
ruptcy; following Edelstein v. U. S. and Wechsler v. U. S.). 1912, Glickstein v. U. S.,
222 U. S. 139, 32 Sup. 71 (the immunity granted in § 7, subd. 9, of the Bankruptcy Act
does not bar a prosecution for perjury committed in the testimony exacted under that
section). 1913, Cameron «. U. S., 231 U. S. 710, 34 Sup. 244 (applying the Bankruptcy
Act, St. July 1, 1898, § 7, and U. S. Rev. St. 1878, § 860 ; but the further ruling that under
the latter statute "testimony given [by the same person] in the one bankruptcy proceeding
[before the examiner], not tending to establish perjury in that proceeding, should not have
been received to establish the crime charged in the other proceeding [before the referee],"
is an unworthy quibble, and must excite astonishment ; has that august body never cast
its eyes down into the sweltering trial courts, and become aware of the disgusting and dis-
graceful amount of perjury daily practiced, and has it never reflected that the difficulties
of punishing perjury are made almost insuperable by quibbling rulings such as the above,
and is it willing to share now a part of the public disgrace that perjury thrives unrepressed ?
572
SELF-CRIMINATION § 2281
[Note 14 — conMrmed]
We commend a perusal of the opinion of Furman, P. J., in Ostendorf v. State, 1912, 8 Okl.
Cr. 360, 128 Pac. 143, 153).
Contra: 1906, U. S. v. Simon, 146 Fed. 89, 92 D. C. (for a bankrupt; cited post, § 2282,
n. 6). 1913, U. S. V. Rhodes, D. C. S. D. Ala., 212 Fed. 518 (the opinion cites only, In re
Harris, 164 Fed. 292, which is however irrelevant).
[Text, p. 3179 ; add, at the end of the section, a new paragraph, and a new note 15 :]
The question will also arise, under these statutes, whether the witness has,
in the subject of his testimony, made a disclosure such as entitles him to the im-
munity. This may depend somewhat upon the phrasing of the particular
statute. But, so far as the general principle is not affected by particular
statutory wordings, it should be necessary and sufBcient (a) that the witness
states something, not merely denies knowledge of any facts ; (b) that his state-
ment is of facts asked for by the opponent, not of facts volunteered or irrele-
vantly interjected ; and (c) that the facts concern a matter about which the
answer might by reasonable possibility have criminated him; for, while on the
one hand it is immaterial whether the answer actually given is an incriminating
one, yet, on the other hand, there is no privilege which he can exchange for
the immunity unless {ante, § 2260) the matter is one on which his answer might
conceivably criminate him.^^ (d) If the foregoing requirements are fulfilled,
1^ The cases do not cover all the points above noted : 1859, R. v. Skeen, 8 Cox Cr. 143
(cited supra, n. 13).
1896, People v. Sternberg, 111 Cal. 3, 43 Pac. 198 (cited supra, u. 13).
1906, Rudolph v. State, 128 Wis. 222, 107 N. W. 466 (indictment for soliciting a bribe as
alderman ; plea, that under St. 1901, c. 85, quoted ante, § 2281, n. 5, he was immune from
prosecution by reason of having testified on the subject before the grand jury ; his testi-
mony there merely stated that he was alderman, and knew of no bribery ; held, that the
testimony to his being alderman was not upon an incriminating fact, on the principle of
§ 2260, ante, so as to secure immunity). 1906, State v. Murphy, 128 Wis. 201, 107 N. W.
470 (similar; the defendant's testimony that he "did not know of any alderman demand-
ing or receiving money," etc., was held not to secure immunity ; as to point (a), supra, in
the text, it is held that whether the witness gives testimony adverse to himself or not, and
whether he testifies truthfully or not, are immaterial, but the question is under the statute
"whether the defendant did, in any reasonable sense, testify concerning the transaction,
matter, or thing for or concerning which he is prosecuted," and therefore "we should but
travesty the statute should we hold that a declaration that he could give no evidence of
any transactions within a general class constituted testimony concerning one"; lucid
opinion by Dodge, J., concurred in on this point by the others; as to point (c), supra, in
the text. Dodge, J., declares that the immunity granted maybe broader than the privilege
yielded, in respect to the scope of facts, if the Legislature clearly so intends ; but from
this view, i.e. that the immunity from the crime could be supposed to be given in exchange
for "disclosures which but for moral turpitude he could be compelled to make any way,
disclosures of mere circumstances so remote as not to fall within the scope of self-crimina-
tory evidence," Marshall, J., dissents "as emphatically as practicable," because the im-
munity and privilege are equivalents, "the one being exchanged by force of the law for the
other," and the statutory phrase "transaction, matter, or thing" signifies "an event of a
criminal character"; with him agree Kerwin and Winslow, 33., thus formiiig a majority
on this point c).
1906, Edelstein v. U. S., — C. C. A. — , 149 Fed. 636, 642 (under U. S. Bankruptcy Act
573
§2281 PRIVILEGED TOPICS
[Text, p. 3179 — continued]
1898, § 7, subdiv. 9, the grant of immunity for "any criminal proceeding" is restricted to
"such as might arise out of the conduct of his business . . . about which alone the statute
authorized the examination in question to be made").
there remains the question as to other crimes; i. e. does the immunity extend
to offences (disclosed by him) other than the one .charged in the indictment or
sought for in the proceeding ? Here something depends on the nature of the
tribunal and the words of the statute. (1) On a trial by jury upon indictment,
the offence charged, or one incidental to it, would mark the limit of immunity ;
for the general object of the immunity would thus be sufBciently attained,
and the immunity is not meant to be wasteful. But on a roving inquiry by a
grand jury, no formal document defines its scope,. either to warn the witness
or to form a record of the results ; hence there should be no limit, if the three
conditions (a, b, c) above mentioned are fulfilled. (2) Yet the statute may use
broad terms ; if it does, those terms should be taken as marking the limits ;
for the Legislature has power to make the pardon-immunity larger than was
necessary and the only question can be whether its statute has so expressed
an intention.^^
" 1908, People v. Argo, 237 111. 173, 86 N. E. 679' (under a statute authorizing a court to
make an order of immunity for a witness called upon in a bribery inquiry, the statutory
immunity covers only the offences of bribery specified in the statute, and therefore ques-
tions concerning illegal gambling, in protection of which the bribery was said to have been
committed, are still privileged; unsound, because the statute's immunity-phrase covered
"any matter to which he shall be required to testify," and this must signify any matter
relevant to the bribery inquiry).
1912, Heike v. U. S., C. C. A., 192 Fed. 83 (whether testimony to offences under the anti-
trust law gave immunity under a charge of fraud on the revenue laws).
May acts for which immunity has been obtained be still used merely as evidence relevant
to a charge of some later act? Yes: 1911, U. S. v. Swift, D. C. N. D. 111., 186 Fed.
1002 (an immunity obtained by giving information in 1904 does not extend to include acts
done in pursuance of the same continuing conspiracy to 1910 or a period prior but not
baired by statute of limitations ; and the transactions covered by the original immunity
may still be given in evidence when relevant to show the nature of the conspiracy at a
later time).
The foregoing question, it is to be noted, may arise in one of two ways:
Either the accused' has made disclosure of a separate offence, and is later
charged with it, and then pleads an immunity gained by his disclosure ; or,
the accused refuses disclosure of the other offence, alleging it to be a separate
one, therefore not covered by the immunity, and therefore still privileged, and
the prosecution alleges the contrary and asks that an answer be compelled.
The decision, it would seem, should be the same, in whichever of these ways
the question arises. ,
[Text, p. 3178, after the paragraph ending "single jurisdiction"; add the following, as a
new section :]
§ 2281a. Same : Mode of Obtaining Immunity in return for Self-Criminat-
ing Evidence. There has been a rapid increase in the number and scope of
574
SELF-CRIMINATION § 2281a
[Text, p. 3178 — continwd]
statutes thus granting immunity in order to enable the State prosecutors to
obtain evidence which would have been protected by the privilege. Owing
to this increase, a most important question arises as to the procedure of the
disclosure which is to obtain immunity.
(a) Where the disclosure takes place in the course of testimony at an or-
dinary trial, whether before a judge, master-in-chancery, or other judicial
officer, it can hardly be doubted that the usual requirements established in
principle must be followed ; i. e. there must be a claim of privilege ^ — and a
^ The general principle is amply shown in the authorities cited ante, § 2268. The fol-
lowing apply it to the present situation :
1913, Scribner v. State, 9 Okl. Cr. 465, 132 Pac. 933 (interpreting Okl. Const. Bill of Rights,
§ 27 ; "the immunity clause is just as broad and no broader than the right or privilege
of silence which it invades").
1911, Com. V. Richardson, 229 Pa. 609, 79 Atl. 222 (testimony given as a witness for the
prosecution, in a trial of M., without subpoena and without claim of privilege, held not to
entitle to immunity from use under Pa. Const. Art. 3, § 32).
1902, U. S. V. Kimball, 117 Fed. 156, 163, C. C. ("The constitutional privilege cannot be
violated before it can be invoked for his protection, . . . Compulsion can only exist where
there is something to be overcome, as for instance refusal, objection, or an unwillingness
of which the jury is apprised. Hence that refusal, objection, or unwillingness must affirma-
tively appear before compulsion is possible. ... He must express his unwillingness in
some form, and bring himself within the rule that he who would have the benefit of an
exemption or privilege must claim it"). 1904, Burrell v. Montana, 194 U. S. 572, 24 Sup.
787, semhle (a witness answering voluntarily and without claim of privilege on a bankruptcy
citation cannot obtain the benefit of the Bankruptcy Act's prohibition of the subsequent
use of the testimony against him).
1906, State «. Murphy, 128 Wis. 201, 107 N. W. 470 (the defendant had testified under
subpoena before the grand jury; his testimony consisted wholly of denials of any
knowledge on the matters involved, and it did not appear that he claimed any privilege
or offered any objection; Marshall, J., held that "for the statute to operate, there
must be evidence under a real compulsion, not mere right of compulsion," so that an
express claim of privilege would be unnecessary only where the situation was such
that on refusal to answer "he would be liable to punishment as standing in defiance of
the Court"; Kerwin, J., concurred; Winslow, J., concurred; "I do not think that com-
pelling a person to appear by subpoena can properly be considered as compelling him to
testify ; . . . A person might be compelled by subpoena to attend, but might testify volun-
tarily when so in attendance and thus waive his privilege ; in like manner I think he may
waive his immunity ; I do not mean by this that it is necessary for the witness to refuse
to answer, but simply that he should make known the fact that he does not testify volun-
tarily but only in .obedience to the command of the law and the Court," which he did not
here do ; Dodge, J., dissenting, on this point).
Contra: 1887, People v. Sharp, 107 N. Y. 427, 445 ("He could not be required, in order to
gain the indemnity which the same law afforded, to go through the formaUty of an objection
or protest which, however made, would be useless").
Under U. S. R. S. § 860 (which does not give immunity, but only forbids the use of the
evidence), the statute's language makes a claim unnecessary.
1909, Hammond Lumber Co. v. Sailors' Union, C. C. N. D. Cal., 167 Fed. 809, 823 (deposi-
tion given in a civil proceeding upon a subpoena duces tecum to produce records as secre-
tary ; the witness producing and being examined was held entitled to the benefit of U. S.
R. S. § 860 though no claim of privilege was made at the time ; it is enough if "the exemp-
575
§ 2281a PRIVILEGED TOPICS
[Text, p. 3178 — continued]
ruling of the judge overriding the claim and directing an answer.^ The reason
is that the anticipatory legislative pardon or immunity is not given absolutely,
but only conditionally upon and in exchange for the deprivation of the privi-
lege. The Legislature did not intend to give something for nothing, i. e. to
give immunity merely in exchange for a testimonial disclosure which it could
in any event have got by ordinary rules or by the witness' failure to insist on
his privilege.* The immunity was intended to be given solely as the means
of overcoming the obstacle of the privilege ; and therefore (irrespective of the
precise "formality of the judge's procedure) could not come into effect until
that obstacle was explicitly presented and thus needed to be overcome. On
the one hand, it is plain, the judge, upon such a claim of privilege being made,
could if he chose respect it, and thus refrain from exercising the immunity-
power. Conversely, therefore, the immunity operates as soon as — and not
imtil — he overrides the claim, by some form of ruling. It is not to be argued,
in opposition, that the criminality of the act disappears by operation of law
as soon as the witness speaks, and that therefore no claim of privilege is
necessary. This argument, in the first place, equally ignores the above-men-
tioned essential feature of the legislative intention (namely, to give the im-
munity solely as a means of removing the obstacle of the claim) . But further-
more, it involves somewhat of a logical absurdity ; for by this theory, before
the witness has testified, his act is still criminal, and therefore within the priv-
ilege, and yet he can be compelled to speak and thus do something to remove
tion is claimed, as here, at the time the evidence thus obtained is first sought to be used,"
i.e. in proceedings for criminal contempt in violating the injunction in the civil proceeding).
But this statute is now repealed (ante, § 2281, n. 5).
^Authorities ante, § 2270, n. 6; § 2271, for the general principle; and the following:
1907, Ex parte Andrews, 61 Tex. Cr. 79, 100 S. W. 376 (a witness refused to answer, claiming
the privilege; on habeas corpus, an immunity statute being cited, it was held .that "inas-
much as he was offered no immunity," the privilege remained).
The proper statutory form, for making clear the necessity of an express claim of privilege
in order to obtain the immunity, is found in the statutes of the Dominion and Ontario,
quoted ante, § 2281, n. 5. The California statute of 1905 (quoted ante, § 2281, n. 5), ante-
dating by a year the ruling in U. S. v. Armour, is a well-worded statement offering a fair
and correct solution of the problem. It does not vary from what might well be the judicial
construction of the privilege, except in its liberality in presuming a claim of privilege in
the absence of a reading aloud of the statute to the witness. The statute, however, has
omitted to provide (as it ought to) that the oath may be impliedly waived, and that a volun-
tary attendance of the witness at a hearing shall be equivalent to a summons by subpoena,
for the purpose of entitUng to immunity.
^ This appears, e. g., in the U. S. St. 1887 (Interstate Commerce Commission), §§ 9, 12,
and its successors (anie, §2281, n. 5), where it is said that "the c/om . . . shall not excuse,"
and "no person shall be excused . . . on the ground that, etc.," "but no person shall be
prosecuted for" anything so testified about.
This general principle that there must inherently be an exchange of privilege for immunity
is well stated in the following opinions : 1884, Turney, J., in State v. Warner, 13 Lea 52,
62-66.
1906, MarshaU, J., in State v. Murphy, 128 Wis. 201, 107 N. W. 470 (quoted infra, § 2281
n. 15).
576
SELF-CRIMINATION § 2281a
[Text, p. 3178 — continued]
its criminality ; in other words, being as yet non-compellable, he is compelled
to become compellable I No such logical feat is required in applying the other
view above set forth.
(b) Where the testimonial disclosure is made before an administrative
officer, having the auxiliary power to subpoena witnesses and to obtain judicial
aid to enforce his testimonial powers,* the question is more complicated in
certain details, though ndt different in principle. (1) In the first place, no
service of subpoena is necessary, in order to bring into play the testimonial
function, either of officer or of witness. Just as a witness may voluntarily take
the stand in court without a subpoena, and still be subject to a witness' duties
of disclosure and entitled to a witness' privileges ; so too for the informal and
less dramatic proceedings of an administrative officer, no subpoena is essen-
tial in law ; the situation merely presents greater difficulty of interpreting the
circumstances and of determining whether the person spoke as a witness in
a given case.^ Nor is an oath, it would seem, any more necessary; whether
perjury could be committed without an oath is immaterial, for the law of
crimes and of evidence are not inherently coextensive ; the imposition of an
oath is a safeguard of trustworthiness only, and if the officer waives it, both
his testitnonial powers and the witness' testimonial duties remain unaffected
in essence.* (2) But a claim of privilege against self-incrimination, explicitly
made, and an explicit overriding of it by the officer, are essential.' This is
not only equally true as for the case of testimony in a judicial trial {supra, (a)),
but the explicitness is here even more essential, and particularly where the ad-
ministrative officer makes a general demand for documents or testimony upon
a broad class of topics. The reason is clear. The officer has testimonial
powers to extract a general mass of facts, of which some, many, or most will
certainly be innocent and unprivileged, some may be privileged communica-
tions (e.g., between attorney and client) whose privilege remains unaffected
by the statute defining his powers, and some may be privileged as self-crimi-
*E. g., the Commissioner of Corporations, vmder U. S. St. 1903, supra, § 2281, n. 5.
' Authority cited for the general principle as to subpoena, ante, § 2199, n. 5 ; and the
following :
1906, U. S. V. Armour Co., 142 Fed. 808, N. D. 111., Humphrey, J. (a plea of immunity
from prosecution, by the defendants, officers of meat-packing companies, was sustained,
on the ground that the defendants had as witnesses obtained immunity, under U. S. St.
1903, Feb. 14 and 25, cited supra, n. 5, § 2281, by producing documents and giving informa-
tion to the Federal Commissioner of Corporations ; "the subpoena is a useless and super-
fluous thing after the parties are together").
By a Federal statute, passed since the above ruling in U. S. v. Armour, it has been at-
tempted to confine the grant of immunity to persons who testify or produce "in obedience
to a subpoena . . . under oath" (U. S. St. 1906, June 30, c. 3920, Stat. L. vol. 34, p. 798;
quoted ante, § 2259). But of course it still remains for the Court to determine whether
such a statute infringes on the constitutional lines of the privilege.
*U. S. V. Armour, supra, and authorities cited ante, § 1819. Contra: 1884, State v.
Warner, 13 Lea 52, 57.
' Contra, in U. S. v. Armour, supra.
577
§ 2281a PRIVILEGED TOPICS
[Text, p. 3178 — continued]
nating but liable to become demandable by overriding this privilege with a grant
of immunity. Among this mass of facts, then, the officer will seek those which
are relevant to his administrative inquiry ; he cannot know which of them fall
within one or another privilege, in particular, which of them tend to criminate
at all, or to criminate a particular person ; if such facts are there, he may not
desire or be authorized to exercise the option of granting immunity so as to
obtain them ; his primary function and power is to obtain the relevant facts
at large, and his- power to obtain a special and limited class of facts by grant
of immunity is only a secondary one, and one which he will not exercise till a
cause arises, if even then. For these reasons of practical sense, then, as well
as for the inherent requirements of principle already noticed for judicial offi-*
-cers, it is particularly true for an inquiry by an administrative officer that the
witness must explicitly claim his privilege, and specifically the privilege against
self-incrimination, and must then be overridden in that claim, before im-
munity can take effect. The contrary view * can only be fallen into by for-
getting the contrast between the broad class of innocent f&cts which are the
normal object of the officer's inquiry, and the special and limited class of
criminal facts which may form scattered parts of the mass. The analogy is
seen in judicial trials, where it is settled that though an accused in a criminal
trial need make no claim, yet a party in a civil trial or a witness in any trial
must make his claim,* because out of the whole mass of innocent facts subject
to inquiry it cannot be known beforehand by the tribunal what particular
facts asked for will tend to. criminate nor whether he will voluntarily choose
to disclose them. So, here, it is especially necessary that the claim of the
particular privilege against self-incrimination should be explicitly put forward
by the witness to segregate and mark the specific facts which he knows or
believes to have that quality ; then, and then only, is the officer placed
in a position when he can consciously exercise the option which the immunity-
statute gives him. This option he can certainly not be deemed to exercise
unwittingly and in gross by the mere circumstance of pursuing his normal
course of duty and power for relevant facts at large. It is indeed astonishing
to suppose that a witness by surreptitiously including criminal with non-
criminal facts could obtain from such an officer a wholesale immunity, without
having done anything to notify either whether particular facts are criminating
or whether he waives his privilege voluntarily and without immunity. (3) The
formalities of claim and immunity-grant, before an administrative officer, are
the only really doubtful and difficult aspects of the problem. In the first
place, it is doubtful whether a statutory requirement of writing for the validity
of the witness' claim would be constitutional. A writing is not necessary for
such a claim in court ; nor would the claim necessarily there become part of
the record. But the statute, as a matter of policy, ought at least to require
the officer to file his questions in writing, and to note a claim of privilege in
writing ; so that the Government, on its part, could at least insure itself and
* Laid down in U. S. v. Armour, supra. 9 Ante, § 2268.
578
SELF-CRIMINATION § 2281a
[Text, p. 3178 — continued]
the witness against the enormous expense of time and money that might be
involved in a trial of the plea of immunity.^" In the next place, if writing is
not requirable nor in fact employed, the claim and its overriding must at least
be explicit; by which is meant, not a form of words, nor any formality of con-
duct, but an expressed and understood claim of the right not to disclose on the
specific ground of facts tending to criminate ; and an explicit overriding of the
<plaim and a grant of immunity.^^ Furthermore, io the case of an inquiry into
acts of a corporation, where the Government demands production of corporate
books from the agents of the corporation, the agent producing the books must
claim the personal privilege for himself, if that is what he desires ; first, be-
cause it cannot be known, until he says so, that the corporate books contain
facts tending to criminate him; and, secondly, because, even though they do,
it cannot be known which of the privileges — his own, or that of the corpora-
tion, or both — the officer will choose to override ; for, in spite of Hale v.
Henkel {ante, § 2259, n. 2), a question may still remain as to the privilege of
the corporation.'^ Finally, the claim may well be in gross, i. e. for a particular
mass of documents the claim may be made as to all criminating facts therein,
and need not be more specifically made nor more frequently renewed than will
suffice to avoid misunderstandiag. The essential thing is that no formality
is required, on the one hand, and, on the other, that the witness, since he is
the one to be explicit, must be explicit enough to serve his purpose. — These
are not all the applicable considerations, either of general principle or of de-
tail ; the entire question will doubtless not be thoroughly worked out in our
judicial decisions for many years to come. But the foregoing aspects are
those which will first claim the judicial labors for their early settlement by
courts of last resort.
It remains to notice a misunderstanding which should not obscure the
effect of the rule in question. It was said, for example, at the time of U. S. v.
Armour, above cited, that " the Department of Commerce and Labor, created
with power to investigate the trusts and combinations in restraint of trade, it is
declared, is absolutely useless if the results of its investigations cannot furnish
any basis on which to bring offenders to punishment." Now the profession
w As in U. S. V. Armour, supra.
" Whether the claim was expUcitly made in fact in U. S. v. Armour, mpra, is perhaps
open to question, as to some of the witnesses, upon some of the testimony. But it is fairly
clear that the witnesses' counsel were amply aware of the applicability of the privilege, and
could have been explicit enough had they chosen. The natural query is, why did they
not all explicitly and in writing claim both privilege and immunity?
The following statute seeks to supply a simple method of plainly declining the immunity .-
N. Y. St. 1912, c. 312, p. 568 (amending Consol. L. c. 40, St. 1909, c. 88, by adding
§ 2446 ; if by any law an immunity of the present sort is provided, a person may file with
the county clerk "a statement expressly waiving such immunity" for a specified transaction,
and thereupon his testimony "may be received or produced before any judge," etc., and
if received, "such person shall not be entitled to any immunity," etc.).
" This distinction seems not t<i have been noticed in U. S. v. Armour, supra.
579
^ 2281a SELF-CRIMINATION
[Text, p. 3178 — continued]
ought to understand that no administrative Department has a fimction to
procure self-incriminating evidence " on which to bring offenders to punish-
ment." That is precisely what the Constitution protects us against. It is
just because no officer has inquisitorial powers to force self-crimination that
the immunity-statutes were passed ; so that only by abnegating the judicial
inquisitorial attitude could the Department obtain the information necessary
for its administrative purposes. The real inconvenience of the above-cited
ruling in U. S. v. Armour was that it hampered the Department of Justice, by
making the Department of Commerce the unwitting instrument of stopping
the prosecutions of the former. Even this is not an insuperable obstacle.
If U. S. 1). Armour should ever become the jBnal law, it would mean simply this,
that an administrative officer, in obtaining testimony for the purposes of his
department, has the burden of making and proving an explicit and specific
disavowal of any intention to grant immunity from prosecution, otherwise
the immunity obtains. This leaves the situation temporarily annoying for
the Government ; but it leaves them with ample power of self-protection for
the future.^^
'' Suppose a witness already under indictment and now summoned before the grand jury
to testify as a witness on the same subject; has his privilege yet disappeared? Yes, for
although he has not yet had an opportunity to claim immunity from trial, yet the indict-
ment is a substantial part of the quid pro quo, and his act of testifying will relate back to the
indictment, and will entitle him to quash it :
1910, In re Kittle, C. C. S. D. N. Y., 180 Fed. 946.
§ 2282. Same : (2) Statutes forbidding the Use of Testimony.
[Text, p. 3180, 1. 2 from below, after "remedy of the statute" ; add a new note 35;]
3' This view has now been taken in Com. «. Cameron, 229 Pa. 592, 79 Atl. 1^9 (1911 ; un-
der Pa. Const. Art. 3, § 32, providing that in bribery self-crimination may be compelled, but
that such testimony "shall not afterwards be used against him," the witness so testifying
does not obtain immunity from prosecution).
[Note 4:-, add:]
1904, iJe Briggs, 135 N. C. 118, 47 S. E. 403 (La Fontaine «. Underwriters cited with ap-
proval).
[Note 5, par. 2 ; add :]
1910, State v. Drew, 110 Minn. 247, 124 N. W. 1091 (under the State banking-frauds act,
the prosecution offered the accused's schedules of assets filed in involuntary bankruptcy
proceedings under the Federal act ; held that the immunity granted was not broad enough
to remove the privilege).
1904, U. S. J). Goldstein, 132 Fed. 789, D. C. (privilege held not annulled, under § 7 of the
Act; the voluntary filing of a petition is not a waiver).
1904, Re Hess, 134 Fed. 109, D. C. (the Bankruptcy Act, § 7 does not abolish the privilege;
but the decision proceeds in part upon the erroneous ground — ante, § 2258 — that the
statute gives no protection against use of the evidence in State courts).
1904, Burrell v. Montana, 194 U. S. 572, 24 Sup. 787 (State v. Burrell, Mont., supra,
affirmed).
1906, U. S. V. Simon, 146 Fed. 89, 92, D. C. (applying Burrell v. Montana, supra; and also
580
SUNDRY PRIVILEGED COMMUNICATIONS § 2286
[Note 5 — continued] ,
holding that a bankrupt cannot be charged with perjury committed in bankruptcy proceed-
ings because the statute, forbidding the use of his testimony "in any criminal proceeding,"
omits the usual exception for perjury committed therein ; collecting the prior rulings on
this point).
1906, Edelstein v. U. S., — C. C. A. — , 149 Fed. 636, 642 (privilege held not annulled).
1911, Matter of George Harris, 221 U. S. 274, 31 Sup. 557 (a court order on a bankrupt
to deposit his books with the receiver for use only in the bankrupt settlement but not for
criminal proceedings, but does not infringe the privilege, in spite of the possibility that
the knowledge so obtained may be used to find other evidence against him in criminal pro-
ceedings).
[Note 7; add:]
N. Dak. : 1908, In re Beer, 17 N. D. 184, 115 N. W. 672 (Counselman v. Hitchcock followed,
in a prosecution for violating the liquor law ; holding Rev. Codes 1905, § 9383, ineffective).
Contra : Pa. : 1911, Com. v. Cameron, 229 Pa. 592, 79 Atl. 169 (cited more fully supra, n. 36).
[Text, p. 3184 ; add a new paragraph :]
Regardless, however, of the efficacy of such statutes to annul the privilege,
and assiuning that answers were duly made by the witness without disputing
his compellability thereunder, the statutes have of course the effect of prevent-
ing the later use of such answers, according to their terms. This result has
seldom, indeed, been invoked, but cannot be doubted.®
8 1908, Jacobs v. U. S., 1st C. C. A., 161 Fed. 694 (under U. S. St. 1898, c. 541, § 7).
1908, Alkon V. U. S., 1st C. C. A., 163 Fed. 810 (under U. S. Rev. St. 1878, § 860, now re-
pealed) ; these cases are cited more fully ante, § 2276, n. 9, on the point of waiver.
§ 2285. Privileged Conununications ; General Principle.
[Note 1 ; add :]
Text approved in O'Toole v. Ohio G. F. Ins. Co., 159 Mich. 187, 123 N. W. 795.
§ 2286. Sundry Confidential Communications not privileged.
[Note 2; add:]
1906, Rogers v. State, 88 Miss. 38, 40 So. 744 (good opinion by Calhoon,, J. ; a "solemn
promise of secrecy" as to the name of a person returning stolen goods, held not to give a
privilege).
[Note 3 ; add, under Accord :]
Oh. St. 1908, p. 20, Feb. 26 (no stenographer shall disclose any matter received from em-
ployer, under penalty ; except when "called as a witness and directed to testify by a proper
court as to matters within his employment").
[Note 6; add:]
1904, Re Davies, 68 Kan. 791, 75 Pac. 1048 (perjury of B. in returning personalty for taxa-
tion ; a banker held not privileged as to the amount of money held on deposit by him for B. ;
good opinion by Smith, J.).
[Note 7, par. 1; add:]
1911, Plunkett v. Hamilton, Hamilton ». Plunkett, 136 Ga. 72, 70 S. E. 781 (newspaper
reporter; privilege denied; forceful opinion by Lumpkin, J.).
581
§ 2287 PRIVILEGED COMMUNICATIONS ' '
§ 2287. Same : Telegrams.
[Note 8, par. 1 ; add ;]
1910, Ex parie Gould, 60 Tex. Cr. 442, 132 S. W. 364.
§ 2292. Attorney and Client ; Privileged Communications.
[Note 1; add:]
Cal. St. 1907, c. 68, p. 87, Mar. 1 (adds to C. C. P. § 1881, par. 2, the first four lines, "nor
. . . capacity," of the Commissioners' amendments of 1901).
Colo. St. 1911, c. 230, p. 679, May 30 (amending Annot. St. 1891, § 4824, Rev. St. 1908,
§ 7274 ; adding the same provision as in Cal. St. 1907).
N. C. Rev. 1905, § 1620 (like Code 1883, § 1349).
§ 2296. Advice sought for Sundry Non-Legal Purposes, etc.
[Note 2; add:]
1905, Turner v. Turner, 123 Ga. 5, 50 S. E. 969 (statements to an attorney employed to
obtain a loan, not privileged).
[NoteZ; add:]
1909, State v. Hoben, 36 Utah 186, 102 Pac. 1000 (not decided as a general rule; here the
State had opened the matter, and the district attorney was not allowed to claim privilege
for consultation with the prosecutrix in a charge of rape under age).
1903, Cobb V. Simon, 119 Wis. 597, 97 N. W. 276 (defendant's consultation with district-
attorney, not privileged).
§ 2297. Advice in Conveyancing.
[Note 5 ; add :]
1906, Fox V. Spears, 78 Ark. 71, 93 S. W. 560 (statements made while consulting over the
drafting of a deed, excluded).
1912, Delger v. Jacobs, 19 Cal. App. 197, 125 Pac. 258 (drafting of a money-security, held
not privileged on the facts).
1906, Mueller v. Batcheler, 131 la. 650, 109 N. W. 186 (conversations between parties con-
sulting an attorney merely "as a scrivener or conveyancer," admitted).
§ 2298. Advice in a Criminal or Fraudulent Transaction.
[Note 2, imder United States; add:]
1913, State v. Wilcox, 90 Kan. 80, 132 Pac. 982 (criminal libel ; communications to a county
attorney, to secure the prosecution of an innocent man by false testimony, held not priv-
ileged, being acts done as a part of a criminal plan).
1909, People v. Farmer, 194 N. Y. 251, 87 N. E. 457 (rule applied to deny the privilege as
to the execution of a deed material on a charge of homicide).
§ 2300. Persons having Legal Knowledge, but not admitted, etc.
[Note 1; add:]
Accord: 1905, State v. Smith, 138 N. C. 700, 50 S. E. 859 (communications to an "attorney
in fact," not being an attorney at law, not privileged).
Contra: 1906, English v. Ricks, 117 Tenn. 73, 95 S. W. 189 (a licensee to practise before
justices of the peace only ; privilege applied ; no authority cited).
582
COMMUNICATIONS WITH ATTORNEYS §2307
§ 2302. Client's Belief in the Attorney's Status.
[Note 1, par. 1; add, under Exclvded:]
1908, R. V. Choney, 17 Man. 467 (confession to one falsely pretending to be the agent of
the accused's attorney and asserting that the latter had sent word to tell about the case,
excluded).
§ 2303. Consultation in Attorney's Capacity.
[Note 1 ; add :]
1903, Sheehan v. Allen, 67 Kan. 712, 74 Pac. 245.
1904, Mack v. Shaxp, 138 Mich. 448, 101 N. W. 631.
The value of such communications is quite another matter: King Lear, I, 4; "Fool.
Then 't is like the breath of an unfee'd lawyer, — you gave me nothing for it."
[Note 2; add:]
1889, Skellie v. James, 81 Ga. 419, 8 S. E. 607 (knowledge not acquired as attorney ; statute
held not applicable).
1904, Union P. R. Co.ti. Day, 68 Kan. 726, 75 Pac. 1021 (consultation with a poormaster,
who was also a lawyer, held not privileged on the facts).
§ 2304. Time of Consultation, etc.
[Note 1 ; add :]
1904, Eckhout v. Cole, 135 N. C. 583, 47 S. E. 655.
[Note 2; add:]
1909, Lanasa v. State, 109 Md. 602, 71 Atl. 1058 (communications pending a tentative
employment never actually authorized, admitted).
1911, Evans v. State, 5 Okl. Cr. 643, 115 Pac. 809 (preliminary consultations, followed
by withdrawal on account of the proposed fee being too high ; held privileged on the
facts).
§ 2306. Communications, distinguished from Acts, etc.
[Note 2, par. 1 ; add:]
1903, Sheehan v. Allen, 67 Kan. 712, 74 Pac. 245 (attorney not allowed to testify as to in-
sanity learned solely in professional consultation).
1910, Surface v. Bentz, 228 Pa. 610, 77 Atl. 922 (the above passage cited).
§ 2307. Same : Production of the Client's Documents.
[Note 1 ; add :]
1908, Ex parte Snow, Gibson v. Snow, 75 N. H. 7, 70 Atl. 120 (counsel held not bound
to produce a copy in his possession on behalf of his client and privileged as to the
client).
[Note 2, par. 1 ; add :]
1913, Pearson v. Yoder, 39 Okl. 105, 134 Pac. 421 (attorney having a mortgage in court,
required to deliver it to be put in evidence).
1890, Edison El. L. Co. v. U. S. El. L. Co., 44 Fed. 294, 297, 45 id. 55, C. C. ("If documents
are not privileged while in the hands of a party, he does not make them privileged by
merely handing them to his counsel").
583
§2309 PRIVILEGED COMMUNICATIONS
§ 2309. Same : Testimony to Possession, etc., of Doctunents.
[Note 1, par. 1; add:]
1903, Ex parte Gfeller, 178 Mo. 248, 7? S. W. 552 (where he last saw certain bonds of the
client, allowed).
1913, Pearson v. Yoder, 39 Okl. 105, 134 Pac. 421 (attorney compellable to say whether a
mortgage in his custody is the one in suit).
§ 2310. Relevancy or Necessity of the Communication.
[Note 1, par. 1 ; add :]
1903, Denunzio's Receiver v. Scholtz, 117 Ky. 182, 77 S. W. 715 (a communication "not in
regard to the subject matter of the employment is not privileged").
§ 2311. Commimications must be Confidential, etc.
[Note 4, par. 1 ; add :]
1905, Mackel v. Bartlett, 33 Mont. 123, 82 Pac. 795.
[Note 5; add:]
1909, Moyers v. Fogarty, 140 la. 701, 119 N. W. 159 (on the facts). 1913, Cockburn v.
Hawkeye C. M. Ass'n, — la. — , 143 N. W. 1006 (attorney allowed to verify a printed
copy of a client's by-laws).
1906, Temple «. Phelps, 193 Mass. 297, 79 N. E. 482 (commimications made concerning a
third person's public testimony, not privileged).
1907, Yardley v. State, 50 Tex. Cr. 644, 100 S. W. 399 (attorney compelled to testify to his
client's testimony given in open court at a former trial).
1907, Aaron v. U. S., 8th C. C. A., 155 Fed. 833 (communications here held not privileged).
[NoteG; add:]
1906, Denunzio's Receiver v. Scholtz, 117 Ky. 182, 77 S. W. 715 (presence of a third person;
privilege denied).
§ 2312. Communications to Opponent or his Attorney, etc.
[Note 3; add:]
1912, Piercy v. Piercy, 18 Cal. App. 751, 124 Pac. 561 (conversations with attorney for both
parties are not privileged as between the parties).
1910, Real Estate Trust Co. v. Wilmington & N. C. E. R. Co., — Del. — , 77 Atl. 756 (ser-
vice of notice upon the opponent ; no privilege).
1904, Scott V. Aultman Co., 211 111. 612, 71 N. E. 1112 (divorce; communications in the
presence of the opposing attorney at a consultation, not privileged).
1904, List's Ex'x v. List, — Ky. — , 82 S. W. 446 (message sent by the party through his
attorney to the opponent, not privileged).
1905, Brown v. Moosic M. C. Co., 211 Pa. 579, 61 Atl. 76 (communications with a joint
attorney, not privileged).
1884, Moffatt v. Hardin, 22 S. C. 9, 12 (apparently by one party to the attorney in the op-
ponent's presence; not privileged). 1905, Wilson v. Gordon, 73 S. C. 155, 53 S. E. 79 (mu-
tual wills by sisters, the same attorney drafting for both ; privilege held not appUcable to
the instructions for drafting the wills, "as between them or those claiming under them").
[Text, p. 3238, 1. 8 ; add a new par. ;]
Distinguish, of course, the rule of propriety (ante, § 1911) against calling
one's own attorney as a witness even in the foregoing cases where he is to tes-
tify to a non-privileged communication with an opponent.
584
COMMUNICATIONS WITH ATTORNEYS § 2319
§ 2313. Identity of Client or Purpose of Suit.
[Note 1; add:]
1904, Elliott V. U. S., 23 D. C. App. 456, 467 (the attorney-witness, having related a con-
versation with the testator in which the former had said that he was preparing memoranda
for the will of another person, the name of that other person was held to be within the priv-
ilege; Chirac v. Reinicker, U. S., infra; distinguished; Shepard, J., diss.).
1906, Strickland v. Capital C. Mills, 74 S. C. 16, 54 S. E. 220 (the attorney's contract for
fee and the assignment of an interest in a judgment are not privileged).
§ 2314. Execution of a Will or Deed, etc.
[Note 2, par. 1 ; add:]
1907, Dominici's Estate, 151 Cal. 181, 90 Pac. 448 (Nelson's Estate followed).
1906, Shapter's Estate, 35 Colo. 578, 85 Pac. 688 (Doherty v. O'Callaghan, Mass., followed).
1907, Champion v. McCarthy, 228 111. 87, 81 N. E. 808 (the above passage cited with ap-
proval, and Blackburn v. Crawfords, U. S., followed). 1912, Norton v. Clark, 253 111. 557,
97 N. E. 1079 (testator's sanity; privilege not applied).
1909, Phillips V. Chase, 201 Mass. 444, 87 N. E. 755 (the cUent's instruction, to the attor-
ney drafting a will and affidavit, to tell her brothers certain things after her death, held to
remove the privilege; miscalled a waiver).
1909, Loree's Estate, 158 Mich. 372, 122 N. W. 623.
1912, Veazey's Will, 80 N. J. Eq. 466, 85 Atl. 176.
1908, Young's Estate, 33 Utah 382, 94 Pac. 731 (privilege not applicable to the preparation
of a will).
Contra : 191 1, Cunnion's Will, 201 N. Y. 123, 94 N. E. 648 (similar to Butler v. Fayerweather,
supra; holding that the Code amendments of 1892, 1893, and 1899, do not alter the rule
as laid down in Loder v. Whelpley, supra; but conceding that this is the result of the N. Y.
statute and was not the rule at common law).
§ 2315. Same : Attorney as Attesting Witness.
[Note 1; add:]
1906, Strickland v. Capital C. MiUs, 74 S. C. 16, 54 S. E. 220 (assignment).
But such an attestation is of course no waiver for prior distinct communications :
1907, Hardy v. Martin, 150 Cal. 341, 89 Pac. 111.
[Note 2; add:]
1906, Inlow V. Hughes, 38 Ind. App. 375, 76 N. E. 763 (like Kern v. Kern, supra).
1906, Brown v. Brown, 77 Nebr. 125, 108 N. W. 180 ("the testator, by permitting his at-
torney to become a witness to the will, thereby consented" to his testifying to the circum-
stances of execution).
§ 2317. Privilege not applicable to Knowledge acquired from Third Persons.
[Note 1, par. 1 ; add, under Accord :]
1904, King V. Ashley, 179 N. Y. 281, 72 N. E. 106.
1908, In re Ruos, D. C. E. D. Pa., 159 Fed. 252 (communications with a third person, not
privileged).
§ 2319. Documents of the Client, etc. ; Conflict of Principles illustrated.
[Note 1, p. 3245, col. 2 :]
In line 19 from below, insert "not" before "privileged"; in line 15 from below, omit, "on
the first point this ruling is unsound."
585
§2319 PRIVILEGED COMMUNICATIONS
[Note 1 ; add :]
England: Jones v. Great Central R. Co., [1910] A. C. 4 (plaintiff, an employee of defendant,
was dismissed and sues ; by his tradeunion rules he was obliged to give them full information,
and was also entitled to free legal assistance from them, on order of the union officials ; his
letters to the union officials, before action brought, pending the officials' decision as to suing,
were held not privileged; citing Anderson v. Bunk). Curtis v. Beaney, [1911] P. 181 (tes-
tamentary proceeding involving the testatrix' insanity ; the testatrix had once been sued on
a contract, and had apparently pleaded insanity ; her then solicitor's brief prepared by him
for counsel, held within the privilege; Walsham v. Stainton and NichoU v. Jones, supra,
followed ; no other cases cited). Birmingham & M. M. O. Co. v. London & N. W. R. Co.,
[1913] 3 K. B. 850 (loss of goods by fire at defendant's station; reports on the fire by de-
fendant's agents to superintendent, held privileged).
Ireland: 1905, Kerry Co. C. v. Liverpool S. Ass'n, L. R. 2 Ire. 38 (action for stranding a
wrecked vessel ; documents obtained by the defendant as agent of an insurance company
with reference to the ship-owner's claim and the circumstances of the loss, held not privi-
leged). 1905, Tobakin v. Dublin S. D. T. Co., L. R. 2 Ire. 58 (a statement of injury by the
plaintiff, furnished to the defendant's agent at the latter's request after the injury, held not
privileged in the defendant's hands).
Canada : Br. C. : 1904, Leadbetter v. Crow's Nest, 10 Br. C. 206 (general principle applied).
Man. : 1906, Savage v. Canadian Pacific R. Co., 16 Man. 381 (reports upon an accident,
sent in by the defendant's agents under standing orders, held not privileged).
Ont.: 1904, Elmsley v. Miller, 10 Ont. L. R. 343 (establishment of a highway; solicitors,
employed by the plaintiff town to investigate its right to use the road, secured written evi-
dence favorable to the claim, and action was begun ; these documents were held privileged,
though no litigation was resolved on at the time of the solicitor's investigations ; Wheeler
V. Le Marchant followed). 1906, Thomson v. Maryland Gas Co., 11 Ont. L. R. 44 (letters
between the defendant's agent and its main office, concerning matters which the latter
might refer to solicitors for legal advice, held not privileged, following the rule of Southwark
& V. W. Co. V. Quick, cited ante, § 2318, n. 1). 1912, Swaisland v. Grand Trunk R. Co.,
Ont. H. C. J., 5 D. L. R. 750 (report of a railway investigating officer, upon an accident;
not decided).
<iue. : 1912, Feigleman v. Montreal St. R. Co., Que. S. C, 3 D. L. R. 125 (railway com-
pany's motorman's report of an accident, held not privileged). 1912, Montreal St. R. Co.
v. Feigleman, Que. K. B., 7 D. L. R. 6 (report of an accident prepared by defendant's con-
ductor and motorman under standing regulations, held privileged).
[Note 5; add:]
1889, Carroll ». East Tenn. V. & Ga. R. Co., 82 Ga. 452, 473, 10 S. E. 163 (personal injury;
reports to the defendant by its employees, concerning the circumstances, held not receivable
in evidence as admissions; the present question not passed upon).
1906, Ex parte Schoepf, 74 Oh. 1, 77 N. E. 276 (personal injury on a street railroad ; the
conductor's and motorman's reports of the accident, made to the claim-agent of^the defend-
ant, under its rule requiring such reports on matters from which a claim might arise and for
submission to counsel if necessary, held privileged).
1895, Davenport Co. v. Pennsylvania R. Co., 166 Pa. 480, 31 Atl. 245 (loss of a shipper's
goods ; a report to the defendant by its agent, concerning the loss, held privileged, because
made "after the plaintiff's claim for damages was made" and "in effect made to counsel,
for they were made for the use of counsel in resisting this particular claim").
1890, Edison, El. L. Co. v. U. S. El. L. Co., 44 Fed. 294, 298, 45 id. 55 (Enghsh cases con-
sidered, and the doctrine stated).
1907, Virginia-Carolina C, Co. v. Knight, 106 Va. 674, 56 S. E. 725 (report of an accident,
made by agent to principal, in the routine of business, before action brought or threatened,
one copy being filed, another sent to the manufacturing department, and another to the
attorneys, the last copy being offered; held not privileged).
586
COMMUNICATIONS WITH ATTORNEYS § 2327
[Note 5 — continued]
1904, Cully «. Northern Pacific R. Co., 35 Wash. 241, 77 Pac. 202 (personal injury ; reports
of unspecified persons to the defendant concerning the circumstances of the injury, held
privileged, and not demandable on answer to interrogatories under Ballinger's Code,
§ 6009, cited ante, § 1856 ; not distinguishing between the present principle and that of § 1856,
ante, and somewhat inconsistently intimating that inspection of th'e documents could be
obtained under Ballinger's Code, § 6047, quoted ante, § 1859).
1913, Horlick's Malted Milk Co. v. Spiegel Co., 155 Wis. 201, 144 N. W. 272 (action for
unfair competition ; discovery sought from plaintiff under Stats. § 4096 as to reports made
by plaintiff's employees ; the order held properly to exclude reports of agents to plaintiff's
attorney or by plaintiff's attorney to agents ; this exception is probably both too broad and
too narrow; Koeber v. Somers, 108 Wis. 497, 84 N. W. 991, and Herman v. Schlesinger,
114 Wis. 382, 90 N. W. 460, approved).
Compare the cases cited ante, § 1856, n. 8, 9 (discovery of names of witnesses).
§ 2322. Inference from Claim ; Judge to Determine Privilege.
[Note 1 ; add, under Contra ;]
1909, Phillips V. Chase, 201 Mass. 444, 87 N. E. 755 (following McCove v. R. Co.).
§ 2325. Indirect Disclosure by the Attorney.
[Note 1; add:]
1904, Jones «. Nantahala M. & T. Co., 137 N. C. 237, 49 S. E. 94 (letter sent by the attorney
to a third person, excluded).
§ 2326. Third Persons Overhearing.
[NoU2; add:]
1906, State «. Falsetta, 43 Wash. 159, 86 Pac. 168 (policemen overhearing the conversation).
§ 2327. Waiver, in general ; Volimtary Testimony as a Waiver.
[JVofel, 1. 3; add:]
1905, Wood V. Etiwanda W. Co., 147 Cal. 228, 81 Pac. 512.
[NoleZ; add:]
1905, Wilson «. Ohio F. Ins. Co., 164 Ind. 462, 73 N. E. 892 (action against a surety; the
plaintiff's attorney's testimony on the trial of the principal for embezzlement, held not a
waiver of privilege for this trial ; no authority cited).
1909, Kelly v. Cummens, 143 la. 148, 121 N. W. 540 (client's testimony to a transaction
with the attorney is a waiver). 1912, State v. Hector, — la. — , 138 N. W. 917 (seduction ;
the woman having made explanations of her testimony before the grand jury and the county
attorney, the latter was allowed to be called to contradict them).
1906, Re Burnette, 73 Kan. 609, ^5 Pac. 547 (certain prior pubHcation, held a waiver).
1903, State v. Nelson, 91 Minn. 143, 97 N. W. 652 (whether the client's testimony given
generally is a waiver ; not decided).
1905, People v. Patrick, 182 N. Y. 131, 74 N. E. 843 (a co-principal's voluntary testimony
held, under the statute, "equivalent to an express waiver in open court" of his privilege).
1909, People ». Farmer, 194 N. Y. 251, 87 N. E. 457 (whether the defendant called herself
B. where acknowledging a deed before an attorney ; her subsequent public avowal of it,
held a waiver).
1904, Jones v. Nantahala M. & T. Co., 137 N. C. 237, 49 S. E. 94 (calling the attorney as a
witness is a waiver as to prior inconsistent statements by the attorney).
587
§2328 PRIVILEGED COMMUNICATIONS
§ 2328. Waiver by Joint Clients, Agents, Assignees.
[Note 1; add:]
1913, In re Whiting, 110 Me. 232, 85 Atl. 791 (guardian for insane ; waiver at probate court
trial; held a waiver on appellate trial).
[Text, 1. 3, after "later trial" ; add a new note lo :]
^''Accord: 1906, Elliott v. Kansas City, 198 Mo. 593, 96 S. W. 1023 (approving the
principle of Green v. Mass., supra, n. 1).
[NoUS; add:]
1904, Leyner v. Leyner, 123 la. 185, 98 N. W. 628 (wife as agent).
I
§ 2329. Waiver by a Deceased Client's Representatives.
[Note 1; add:]
1903, Stewart v. Walker, 6 Ont. L. R. 495 (Russell v. Jackson, Eng., followed, in an issue of
devisavit ml nan).
1911, Wilkinson v. Service, 249 111. 146., 94 N. E. 60.
1907, Le Prohon's Appeal, Greene's Estate, 102 Me. 455, 67 Atl. 317 (personal representative
or heir may waive).
1913, Holyoke v. Holyoke's Estate, 110 Me. 469, 87 Atl. 40, semhle.
1909, Phillips V. Chase, 201 Mass. 444, 87 N. E. 755 (in a controversy of succession, where
both parties claim under the testator, neither can claim the privilege).
1903, Ex parte Gfeller, 178 Mo. 248, 77 S. W. 552 (privilege allowed to be waived by the
executor, here seeking discovery against the attorney ; following the analogy of Thompson
V. Ish, Mo., cited post, § 2391, as to physician's privilege).
1907, Parker v. Parker, 78 Nebr. 535, 111 N. W. 119 (proponent allowed to waive the
privilege).
Undecided: 1906, Brown v. Brown, 77 Nebr. 125, 108 N. W. 180.
§ 2334. Marital Conununications ; Marital Disqualification and Anti-
Marital Privilege, distingiiished.
[Note 1; add, under Accord:]
1904, Howard v. Com., 118 Ky. 1, 80 S. W. 211, 81 S. W. 704 (husband a witness only).
[NoteZ; add:]
1905, Marshall ». Marshall, 71 Kan. 313, 80 Pac. 629 (removal of general marital disability
for or against the other does not affect the privilege for communications).
[Note 5; add:]
1910, Schreffler v. Chase, 245 111. 395, 92 N. E. 272 (Rev. St. 1873, c. 51, § 5, leaves the com-
mon law rule untouched except so far as exceptions are expressly enumerated).
§ 2336. Knowledge obtained in Confidence, etc.
[Note 1; add:]
1906, Caldwell «. State, 146 Ala. 141, 41 So. 473 (letters not "of a private or confidential
nature," admitted).
1905, Hannaford v. Dowdle, 75 Ark. 127, 86 S. W. 818 (husband testifying to business
transactions with his wife; allowed). 1905, Hight v. Klingensmith, 75 Ark. 218, 87 S. W.
138 (wife's declarations in a third person's presence, admitted).
1908, Donnan v, Donnan, 236 111. 341, 86 N. E. 279 (will-contest; the widow's testimony to
588
MARITAL COMMUNICATIONS §2337
[Note 1 — continued]
the testator's conversations with one of the heirs, excluded, under an express statutory
clause; unsound at common law). 1912, Weigand v. Rutschke, 253 111. 260, 97 N. E. 641
(husband not allowed to testify to statements by his wife, in an action by his son to set
aside the wife's deed to a sister). 1912, Stephens v. ColUson, 256 111. 238, 99 N. E. 914
(excluding statements made by the wife to third persons in the presence of her husband ;
applying the anomalous rule of the Illinois statute, c. 51, § 5).
1905, Sexton v. Sexton, 129 la. 487, 105 N. W. 315 (alienation of husband's affections; the
wife allowed to testify to aqts and conversations of the husband exhibiting his former affec-
tion and his subsequent loss thereof ; the opinion is not entirely plain in stating whether
it proceeds exclusively on the ground that such matters are not confidential, or in part also
on the ground of an exception under § 2338, post; but the broad statements of Hertrich v.
Hertrich, supra, are qualified). 1906, Hardwick v. Hardwick, 130 la. 230, 106 N. W. 639
(loss of consortium ; Sexton v. Sexton followed).
1905, Shepherd v. Com., 119 Ky. 931, 85 S. W. 191 (murder; the wife's communication to
the defendant of threats by the deceased, admitted ; but the opinion lacks appreciation of
the proper reasoning). 1905, Bright v. Com., 120 Ky. 298, 86 S. W. 527 (Arnett v. Com.,
supra, followed). 1908, Leucht v. Leucht, 129 Ky. 700, 112 S. W. — ("although the word
'confidential' was not used [in the Code], it was evidently the purpose to exclude only such
communications as would naturally grow out of the marriage relation").
1907, White v. White, 101 Minn. 451, 112 N. W. 627 (not decided, where a third party raised
the question).
1901, Lynn v. Hockaday, 162 Mo. 123, 61 S. W. 888 (the proviso in Rev. St. 1899, § 4656, at
the end, is limited to the cases in which the spouse is qualified by the prior part of the stat-
ute, and does not extend to cases in which she might have testified at common law). 1909,
Brown v. Patterson, 224 Mo. 639, 124 S. W. 1 (widow admitted to testify to an agreement
between H. and her husband ; Lynn v. Hockaday approved).
1911, In re Sherin, 28 S. D. 420, 133 N. W. 701 (on rehearing; letters written by the wife's
attorney, but authorized by her, held not privileged).
1905, Cole V. State, 48 Tex. Cr. 439, 88 S. W. 341 (statements of accused in the presence of
his wife and her mother, admitted). 1912, Lanham v. Lanham, 105 Tex. 91, 145 S. W. 336
(will probate; letters of testator to wife reproaching her for misconduct, excluded).
1914, Metropolitan Life Ins. Co. v. O'Grady, — Va. — , 80 S. E. 743 (under Code § 3346a
there is no limitation to confidential communications; here, communications concerning
the drafting of a will were held privileged).
§ 2337. Communications, not Acts.
[Note 2; add:]
Can. : 1903, Gosselin v. King, 33 Can. Sup. 255, 263 (questions to a wife as to intercourse,
with a view to contradicting her husband, held not communications ; Girouard, J., diss.).
Ark. : 1905, Wiley v. McBride, 74 Ark. 34, 85 S. W. 84 (bill to set aside a fraudulent convey-
ance to a wife; discovery as to the giftj held not privileged).
Col. : 1910, People v. Loper, 159 Cal. 6, 112 Pac. 720 (sanity or insanity; not privileged).
Ga. : 1905, Macon R. & L. Co. v. Mason, 123 Ga. 773, 51 S. E. 569 (a wife allowed to testify
to her husband's personal injuries observe'd by her).
III. : 1908, Donnan v. Donnan, 236 111. 341, 86 N. E. 279 (will contest ; the widow's testi-
mony to the testator's mental condition, not admissible). 1910, SchreflSer v. Chase, 245
111. 395, 92 N. E. 272 (probate of a wife's will, contested on the ground of unsoundness of
mind; the husband's testimony for the contestant, as to her insane conduct, held priv-
ileged). 1912, Stephens v. CoUison, 256 111. 238, 99 N. E. 914 (excluding the widow's tes-
timony to the assets of her husband, on the present principle). 1912, Donnan v. Donnan,
256 111. 244, 99 N. E. 931 (widow of testator, not allowed to testify to his condition of health).
589
§2337 PRIVILEGED COMMUNICATIONS
[Note 2 — continued]
Mich.: 1909, Pierson v. Illinois C. R. Co., 159 Mich. 110, 123 N. W. 576 (husband's phys-
ical condition ; privilege applicable).
Tenn. : 1906, English v. Ricks, 117 Tenn. 73, 95 S. W. 189 (probate contest, over a will be-
queathing chiefly to a wife ; to show the testator's marital unhappiness, his declarations
that he was "living in hell," excluded; this seems erroneous).
Wis. : 1905, Schultz v. Culbertson, 125 Wis. 169, 103 N. W. 234 (widow allowed to testify
to the deceased husband's mental incapacity based on acts observed by her without par-
ticipation or influence on her part).
§ 2338. Exceptions and Distinctions.
[Note 2; add:]
1905, Sexton v. Sexton, 129 la. 487, 105 N. W. 315 (cited ante, § 2336, n. 1).
[Text, p. 3267, 1. 8, at the end ; add:]
On this analogy, it is plain that where either needs the evidence of communi-
cations in a trial involving a controversy between them, the privilege should
cease, or a cruel injustice may be done ^''.
'" Accord: 1897, Beyerline v. State, 147 Ind. 125, 45 N. E. 772 (cited ante, § 2337, n. 2).
1913, Spearman v. State, — Tex. Cr. — , 152 S. W. 915 (wife's perjury in a divorce suit;
the wife had deponed in the suit admitting that she was pregnant, unknown to him, and by
another man, before marriage ; to show that in fact the husband himself was her seducer,
and that she had admitted the opposite facts to save him from an alleged prosecution, her
testimony to his fraudulent solicitations to make such deposition was admitted ; per Harper,
J. : "the law . . . will not prevent her from telling the truth . . . when he seeks by this
means to wrong her" ; Davidson, P. J., diss.).
Contra: 1911, People v. Bowen, 165 Mich. 231, 130 N. W. 706 (wife-murder; to show in-
formation of her infideUty, causing insanity, the defendant was not allowed to testify to her
confessions to him).
[Text, p. 3267, last line; add a new par. (3a) :I
(3a) Under statutes, questions may arise, as to the effect of sundry words
making exceptions to the rule.^'
2» 1913, Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268 (under Gen. St. 1909, § 5915,
C. C. P. § 321, a wife or husband may testify for the other as to transactions done as agent
for the other, the omission of the exception-clause to that effect in the former statute not
having changed the law ; but it is strange that the Court did not lay hold of the doctrine of
waiver, post, § 2340, which was precisely the ground why the privilege need not here be
applied).
§ 2339. Third Persons Overbearing, etc.
[Note 1; add:]
1906, Com. V. Everson, 123 Ky. 330, 96 S. W. 460 (by an eavesdropper).
[Note 1 ; add a new par. ;]
Where an accused's confession has been partly stated by one hearing it, the principle of § 2100,
ante (Completeness), requires that the whole should be given, even if it involves a com-
munication to the wife :
1912, People v. Bowen, 170 Mich. 129, 135 N. W. 824, semble.
590
MARITAL COMMUNICATIONS §2340
[Note 2; add:]
1905, De Leon v. Terr., 9 Ariz. 161, 80 Pac. 348 (letter by the defendant to his wife, written
with knowledge that by jail rules it would be opened and read by the jailer ; the jailer al-
lowed to testify to its contents).
1905, Hammons v. State, 73 Ark. 495, 84 S. W. 718 (defendant in jail gave to a messenger
a letter for the wife ; the messenger delivered it to the wife's father, who handed it to a rela-
tive of the injured party ; admitted; McCuUoch and Battle, JJ., diss.).
1909, People v. Swaile, 12 Cal. App. 192, 107 Pag. 134 (letter sent by accused to his wife
through a police officer, tead by the wife, given back to the officer at his request, and brought
to court; admitted).
1909, O'Toole v. Ohio G. F. Ins. Co., 159 Mich. 187, 123 N. W. 795 (letters lost by the hus-
band and found by a third person without collusion, admitted ; careful opinion, by Os-
trander, J.). 1^10, People v. Dunnigan, 163 Mich. 349, 128 N. W. 180 (defendant's letter
to his wife, obtained, before delivery to her, by a trick of the sheriff, admitted).
1913, State v. Wallace, 162 N. C. 622, 78 S. E. 1 (husband's letter found by a poUceman in
husband's house, admitted).
1906, Connella v. Terr., 16 Okl. 365, 86 Pac. 72 (forgery; letter sent by defendant to his
wife, not reaching her, but falling into the sheriff's possession, admitted).
1910, State v. Sysinger, 25 S. D. 110, 125 N. W. 879 (letters written by defendant to his wife
and by her delivered to the prosecuting attorney, admitted).
1911, Gross V. State, 61 Tex. Cr. 176, 135 S. W. 373 (husband's letter to wife, found by a
prying third person on the latter's premises, excluded; unsound).
1905, State v. Nelson, 39 Wash. 221, 81 Pac. 721 (adultery of N. with S. ; S.'s letter to her
husband, offered to impeach her as a witness for the defendant N., admitted, because "pro-
duced by the officers of the State").
§ 2340. Who may Claim the Privilege ; Waiver.
[Note 1, under Contra; add:]
1911, Luick V. Arends, — S. D. — , 132 N. W. 353.
1912, Hampton v. State, 7 Okl. Cr. 291, 123 Pac. 571.
[Note 1 ; add, at the end :]
The privilege, of course, does not belong to the party to the suit as such (ante, § 2196) ;
hence, the party cannot appeal on the ground of an erroneous denial of the privilege :
1911, Luick T. Arends, — S. D. — , 132 N. W. 353 (alienation of wife's affections; the
defendant cannot object to a ruling admitting for the plaintiff a letter from the wife to
the plaintiff).
In strictness, no third person can raise the question :
1907, White v. White, 101 Minn. 451, 112 N. W. 627 (not decided).
May an inference be drawn from a party's failure to call his spouse to testify to a com-
munication for which the privilege could have been waived ? Yes ; for the considerations
applicable to the other privilege (ante, § 2243) seem here not applicable :
1912, Hampton v. State, 7 Okl. Cr. 291, 123 Pac. 571.
[Note 3, par. 1 ; add :]
1913, McCord v. McCord, 140 Ga. 170, 78 S. E. 833 (divorce; wife's testimony to desertion
held a waiver of her privilege as to a letter written by her to the husband explaining his
desertion).
1913, Spearman v. State, — Tex. Cr. — , 152 S. W. 915 (husband's use of a deposition of
his \rif e, held to allow her explanation of his solicitations to make it ; cited ante, § 2338, n. 1 ;
Davidson, P. J., diss.).
But the opponent's caUing of the wife cannot be a waiver :
1910, Abrahams v. WooUey, 243 111. 365, 90 N. E. 667.
591
§ 2340 PRIVILEGED COMMUNICATIONS
[Note 4, under Accord; add :]
1913, Marks v. Madsen, 261 111. 51, 103 N. E. 625 (here the statute is a jumble of incon-
sistencies, and impliedly negatives any waiver).
1913, Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268 (cited more fully ante, § 2338, n. 1).
1904, Com. V. Cronin, 185 Mass. 96, 69 N. E. 1065 (defendant's wife's testimony to her hus-
band's private declarations to her, offered by him, excluded ; erroneous) .
§ 2341. Death, Divorce, etc.
[Note 1, par. 1; add:]
1910, SchrefiBer v. Chase, 245 111. 395, 92 N. E. 272 (appeal against a decree setting aside
a wife's will for unsoundness of mind ; the husband's testimony for the contestants, as to
the wife's conduct and language in the family, held improperly admitted ; Rev. St. 1873,
c. 51, § 5, held to contain no exception to the common law rule for such a case). 1912,
Neice v. Chicago & Alton R. Co., 254 111. 595, 98 N. E. 989 (widow of deceased person
killed by defendant's train, not allowed to testify to a conversation with him as to his
intention in taking a journey).
1911, People V. Bowen, 165 Mich. 231, 130 N. W. 706.
1910, Metzger ». Royal Neighbors, 86 Nebr. 61, 124 N. W. 913.
1905, Schultz V. Culbertson, 125 Wis. 169, 103 N. W. 234.
[Note 2; add:]
1907, Wickes v. Walden, 228 111. 56, 81 N. E. 798.
1904, German-Amer. Ins. Co. v. Paul, 5 Ind. Terr. 703, 83 S. W. 60.
1909, Pierson v. Illinois C. R. Co., 159 Mich. 110, 123 N. W. 576 (point not noticed in
opinion).
1911, Luick V. Arends, — S. D. — , 132 N. W. 353 (divorce since suit begun; point not
noticed) .
1903, Davis v. State, 45 Tex. Cr. 292, 77 S. W. 451.
[Note 3; add:]
Accord: 1913, Holyoke v. Holyoke's Estate, 110 Me. 469, 87 Atl. 40.
§ 2346. Juror's Privileged Communications ; Scope of the Principle.
[Note 2 ; add, at the end :]
But the rule does not prevent a juror from testifying at a subsequent trial to knowledge
obtained by a view of premises at a former trial: 1875, Cramer v. Burlington, 42.1a. 315
(juror who had examined a sidewalk at a view on a former trial, admitted). 1906, Hughes '
V. Chicago, St. P. M. & O. R. Co., 126 Wis. 525, 106 N. W. 526 (similar). Compare § 1168,
ante.
§ 2349. Impeaching a Verdict ; Jurors' Motives, Beliefs, etc.
[Note 2; add:]
Col. : see the later cases cited infra, n. 3.
D. C: 1910, Hyde v. U. S., 35 D. C. App. 451, 486 (jurors' affidavits that the verdict in
a conspiracy case was reached by a compromise as to acquittal and conviction of the several
defendants).
la. : But this foregoing line of precedents seems to have been abandoned in recent cases,
based probably on a misconception of the doctrine of Wright v. Tel. Co., post, § 2353 :
592
JURORS' COMMUNICATIONS §2354
[Note 2 — eontinuedl
1904, Douglass v. Agne, 125 la. 67, 99 N. W. 550 (jurors' testimony that they gave weight
to evidence not properly before them, admissible). 1907, Brown Land Co. v. Lehman,
134 la. 712, 112 N. W. 185 (same).
Kan.: 1911, State ». Keehn, 85 Kan. 765, 118 Pac. 851 (two jurors' affidavits as to mis-
understanding of judge's power to reduce degree of crime, as a ground for their vote, ex-
cluded; following Perry v. Bailey).
Nebr. ; 1908, Hamblin v. State, 81 Nebr. 148, 115 N. W. 860 (jurors' affidavits as to mis-
understanding instructions, excluded).
La.: 1905, State v. Ferguson, 114 La. 70, 38 So. 23 (jurors' affidavits that they considered
the defendant's previous record, excluded). 1906, State v. Barrett, 117 La. 1086, 42 So.
513 (juror's statement after verdict that he had a fixed opinion when selected, excliided).
Mont. : 1906, State v. Beesskove, 34 Mont. 41, 85 Pac. 376 (misunderstanding of the in-
structions; excluded).
N. H.: 1906, Winslow «. Smith, 74 N. H. 65, 65 Atl. 108 (jurors' affidavits as to miscon-
struing instructions, excluded). 1912, Boston & M. R. Co. v. Franklin, 76 N. H. 459,
84 Atl. 44 (preceding cases affirmed; the ground not clearly appearing).
N. D. : 1905, State v. Forrester, 14 N. D. 335, 103 N. W. 625 (jurors' affidavits as to mis-
understanding the instructions, excluded).
Tex.: 1904, Bearden v. State, 47 Tex. Cr. 271, 83 S. W. 808 (jurors' affidavits that they
assented on agreement to petition for pardon, excluded). 1913, Rogers v. State, — Tex.
Cr. — , 159 S. W. 40 (juror's affidavit that he agreed because of the others' promise to sign
a recommendation for pardon, excluded).
Vt. : 1905, Marcy v. Parker, 78 Vt. 73, 62 Atl. 19 (jurors' affidavits that they misunder-
stood the instructions, excluded).
Wash. : 1905, State v. Strodemier, 41 Wash. 159, 83 Pac. 22 (that misconduct did not
influence the verdict; excluded). 1909, Ralton v. Sherwood L. Co. 54 Wash. 254, 103
Pac. 28 (affidavits that the jurors did not consider certain instructions, excluded). 1909,
State V. Aker, 54 Wash. 342, 103 Pac. 420 (juror's affidavit that he assented through in-
timidation, excluded).
[Note 3 ; add, under California :]
1905, People v. Chin Non, 146 Cal. 561, 80 Pac. 681 (jurors' affidavits that the reading of
certain newspapers did not influence them, excluded). 1909, Kimic v. San Jose L. G.
I. R. Co., 156 Cal. 379, 104 Pac. 986 (affidavits as to influence of misconduct, excluded).
§ 2350. Same : Examining the Jury before Discharge, etc.
[Note 1; add:]
1884, Dearborn v. Newhall, 63 N. H. 301 (leading opinion, by Doe, C. J.).
1906, Winslow v. Smith, 74 N. H. 65, 65 Atl. 108 (good opinion, by Chase, J.).
§ 2351. Issues of the Trial, as Material, etc.
[Note 2; add:]
1882, Hewett v. Chapman, 49 Mich. 4, 12 N. W. 888 (trover for timber; to show that the
jury in a former trial had allowed for this claim, a juror's testimony was excluded).
§ 2354. Irregularities and Misconduct ; State of the Law, etc.
[Note 2; add:]
Ala. : 1906, Birmingham R. L. & P. Co. v. Moore, 148 Ala. 115, 42 So. 1024 (juror's affidavit,
not admitted to show a quotient verdict).
593
§2354 PRIVILEGED COMMUNICATIONS
[Note 2 — cahtintied]
Ariz.: 1913, Hull v. Larson, 14 Ariz. 492, 131 Pac. 668 (quotient verdict; juror's affidavit
inadmissible, in civil cases). ,
Cal. : 1905, People v. Chin Non, 146 Cal. 561, 80 Pac. 681 (jurors' affidavits to show im-
proper reading of newspapers, admitted, because offered by the prosecution ; no authority-
cited). 1909, Kimic v. San Jose L. G. I. E. Co., 156 Cal. 379, 104 Pac. 986 (affidavits as
to misconduct, excluded).
III.: 1908, Wyckoff v. Chicago City R. Co., 234 111. 613, 85 N. E. 237 (affidavit of juror's
private view of premises, excluded).
la. : 1904, Douglass v. Agne, 125 la. 67, 99 N. W. 550 (contra to Bingham v. Foster,
supra, but not noticing it). 1907, Clark v. Van Vleck, 135 la. 194, 112 N. W. 64S
(jurors' affidavits that they reckoned damages for matters not properly before them,
excluded).
Kan. : 1904, State v. Rambo, 69 Kan. 777, 77 Pac. 563 (juror's testimony received as to
the juror's allusion to the defendant's failure to testify).
La. : 1912, State v. Cloud, 130 La. 955, 58 So. 827 (juror's testimony to disqualifying
knowledge of the case, excluded).
Ky. . 1912, Beard v. Com., 149 Ky. 632, 149 S. W. 989 (under Cr. C. § 272, "a juror cannot
be examined to estabUsh a ground for a new trial except it be to establish that the verdict
was made by lot" ; here, a separation of the jury).
Md. : 1909, Brinsfield v. Howeth, 110 Md. 520, 73 Atl. 289 (juror's affidavit to browbeat-
ing in the jury-room, excluded).
Mich.. 1901, Wixom s. Bixby, 127 Mich. 486, 86 N. W. 1001 (rule appUpd to exclude a
juror's affidavit as to a quotient verdict of damages). 1905, Battle Creek v. Haak, 139
Mich. 514, 102 N. W. 1005 (rule, applied to exclude jurors' affidavits as to an average ver-
dict of damages).
1905, Brister v. State, 86 Miss. 461, 38 So. 678 (juror's affidavit as to reading law-books,
excluded).
N. H. : 1912, Boston & M. R. Co. v. Franklin, 76 N. H. 459, 84 Atl. 44 (preceding cases
affirmed ; the ground not clearly appearing).
N. Mex. : 1913, Goldenberg v. Law, 17 N. M. 546, 131 Pac. 499 (damages determined by
coin-tossing; jurors' affidavits, excluded).
N. D. : 1913, Johnson v. Seel, 26 N. D. 299, 144 N. W. 237 (jurors' affidavits to another
juror's remarks in thfe jury room showing bias, excluded).
Okl. : 1912, Keith v. State, 7 Okl. Cr. 156, 123 Pac. 172 ("manner in which the jury arrived
at their verdict," two jurors' affidavits excluded).
R. I.: 1910, PhiUips v. Rhode Island Co., 32 R. I. 16, 78 Atl. 342 (unauthorized view;
jurors' affidavits excluded).
S. D. : 1908, Ewing v. Lunn, 22 S. D. 95, 116 N. W. 527 (jurors' affidavits as to a juror's
intoxication, excluded).
U. S. : 1912, Hyde & Schneider v. U. S., 225 U. S. 347, 381, 32 Sup. 793 (jurors' affidavits
not received to show that the verdict of guilty against two defendants was a compromise
between those jurors who believed that all three defendants should be convicted and those
who believed that all three should be convicted). 1913, McDonald v. Pless, 4th C. C. A.,
206 Fed. 263 (quotient verdict; juror's testiinony not admissible; the opinion fails to
'make the proper distinctions).
Wash. : 1913, Maryland Casualty Co. v. Seattle El. Co., 75 Wash. 430, 134 Pac. 1097 (mis-
conduct in taking a private view ; jurors' affidavits admitted to show the fact, but not its
effect on their minds ; discriminating opinion by ElUs, J.).
Wyo. : 1912, Pullman Co. v. Finley, 20 Wyo. 456, 125 Pac. 380 (quotient verdict; two jur-
ors' affidavits, not admitted).
[Note 5; add:]
1912, State v. Cloud, 130 La. 955, 58 So. 827.
594
JURORS' COMMUNICATIONS §2356
[Note 9; add:]
1905, Birmingham R. & E. Co. v. Mason, 144 Ala. 387, 39 So. 590 (jurors' affidavits that
an improper document was not read by them, admitted). 1906, Birmingham R. L. &
P. Co. Ji. Moore, 148 Ala. 116, 42 So. 1024.
1905, State v. West, 11 Ida. 157, 81 Pac. 107 (juror's affidavit, admissible to explain his
separation from the jury during retirement ; but uncorroborated it is insufficient).
1903, Groves & S. R. R. Co. v. Herman, 206 III. 34, 69 N. E. 36, semble (chance-verdict).
1907, Strand v. Grinnell A. G. Co., 136 la. 68, 113 N. W. 488.
[Note 15, par. 1, 1. 4; add:]
1905, People v. Murphy, 146 Cal. 502, 80 Pac. 709.
1885, Dearborn v. NewhaU, 63 N. H. 301.
1913, Maryland Casualty Co. v. Seattle El. Co., 75 Wash. 430, 134 Pac. 1097.
[Note 15, par. 1, 1. 7; add:]
1906, Goodwin v. Blanchard, 73 N. H. 550, 64 Atl. 22 (collecting authorities).
§ 2355. Mistake in Announcing or Recording the Verdict.
, [Note 2; add:]
1904, McCoy ,». Jordan, 184 Mass. 575, 69 N. E. 358 (a juror, on being asked by the
clerk whether he assented, answered, " Under protest " ; the verdict was held properly
recorded as unanimous).
1907, Butteris v. Mifflin & L. M. Co., 133 Wis. 343, 113 N. W. 642 (affidavits that four ju-
rors "did not intend to return a verdict" as found, excluded).
[Note 4, par. 1, add:]
1904, Gillespie v. Ashford, 125 la. 729, 101 N. W. 649 (like Capen v. Stoughton, Mass.).
1912, Randall v. Peerless Motor Car Co., 212 Mass. 352, 99 N. E. 221 (the unanimous
affidavits of the jurors that the answer "No" to an interrogatory was intended to be "Yes"
but was mistakenly recorded was received, though made after separation).
§ 2356. Same : Explaining the Verdict's Meaning, etc.
[Note 1; add:]
1906, R. V. Burdell, 11 Ont. L. R. 440.
1905, Denham v. Com., 119 Ky. 508, 84 S. W. 538 (mistake in the wording).
1906, State v. Miles, 199 Mo. 530, 98 S. W. 25.
1905, State v. Godwin, 138 N. C. 582, 50 S. E. 277 (here the judge refused to accept a ver-
dict of "Guilty, but innocently").
[Text, p. 3303, last line ; add a note la :]
•• That the trial judge may properly ask the jury, when they cannot reach a verdict, how
their votes divide (without asking which way the majority stands), seems harmless enough,
especially as these facts and more are shortly afterwards told freely out of court ; but a
finical spirit has recently rebuked such questions, and has even not scrupled to delay the
course of justice for this petty cause :
1906, Burton v. U. S., 196 U. S. 283, 25 Sup. 243.
1906, McCoy v. U. S., 6 Ind. Terr. 415, 98 S. W. 144.
[Note 2; add:]
1906, Koch V. State, 126 Wis. 470, 106 N. W. 531 (correction of a sealed verdict after dis-
charge, not allowed on the facts).
595
§2358 PRIVILEGED COMMUNICATIONS
§ 2358. Arbitrators' Awards ; Foregoing Principles Applied.
[Note 1, at the end; add:]
Upon the distinction between general and special submissions to award, for which the rule
differs somewhat, see the lengthy opinions in the following case : 1906, White Star Mining
Co. V. Hultberg, 220 111. 578, 77 N. E. 327 (two judges dissenting).
[Note 2; add:]
1903, Jensen v. Deep Creek F. & L. S. Co., 27 Utah 66, 74 Pac. 427 (arbitrator's testimony
may be received to show that "all matters included in the submission were considered and
adjudicated").
[Note 5; add:]
1907, Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 27 Sup. 326 (assessment of a rail-
road by a State board of equalization, alleged to be invalid by reason of the board's improper
method of calculating valuations and taxable amounts; the "operation of their [the board's]
minds in valuing and taxing the roads," held to be immaterial; "all the often-repeated
reasons for the rule as to jurymen apply with redoubled force to the attempt, by exhibiting
on cross-examination the confusion of the members' minds, to attack in another proceeding
the judgment of a lay tribunal, which is intended, so far as may be, to be final, notwith-
standing mistakes of fact or law").
Contra to the foregoing: 1877, Schettler v. Fort Howard, 43 Wis. 48 (assessors). 1879,
Plumer v. Board, 46 Wis. 163, 174, 50 N. W. 416 (assessors).
§ 2360. Grand Jurors' Communications ; History, etc.
[Note 4: ; add:]
Ind. St. 1905, p. 584, § 103 (re-enacts Rev. St. 1897, § 1754).
[Note 5 ; add :]
and the opinion of Boyd, J., in fle Atwell, 140 Fed. 368, D. C. (1905).
§ 2363. Privilege of Witnesses before the Grand Jury ; Instances, etc.
[Note 1, par. 1 ; add:]
1905, State v. Brown, 128 la. 24, 102 N. W. 799 (wife of defendant).
{Note 2, par. 1 ; add ;]
1906, State v. Campbell, 73 Kan. 688, 85 Pac, 784 (accused's testimony ; repudiating the
construction by the Missouri Court, in Tindal v. Nichols, infra, of the statute on which the
Kansas statute was founded).
[Text, p. 3316, at the end of 1. 9 (par. o) ; add a note 2a :]
^Accord: 1906, State v. Campbell, 73 Kan. 688, 85 Pac. 784 (good opinion by Porter,
J.).
1905, Murphy v. State, 124 Wis. 635, 102 N. W. 1087; and Jenkins v. State, Fla., Hinshaw
V. State, Ind., cited supra, n. 2.
[Note 3, at the end ; add:]
So also the testimony may be used, as of course, for establishing an immunity from prose-
cution (ante, § 2281), obtained in return for the giving of testimony :
1905, Murphy v. State, 124 Wis. 635, 102 N. W. 1087. 1905, Havenor v. State, 125 id. 444,
104 N. W. 116.
596
OFFICIAL COMMUNICATIONS §2371
[Note 5, at the end ; add:]
Compare the statutes giving the right to a list of witnesses before trial (ante, §§ 1850-1854).
So also on proceedings involving the indictment's validity :
1908, Atwell V. U. S., 4th C. C. A., 162 Fed. 97 (after the indictment has been presented
and published, and the grand jury discharged, a juror is amenable to subpoena to testify
on a plea in abatement as to testimony given by witnesses before the grand jury).
[Text, p. 3317, after par. (d) insert a new par. {d') :]
d' When a person pleads immunity from prosecution by reason of testimony
given before a grand jury under an immunity statute {ante, §2281), the present
privilege should of course not apply to prevent proof of his testimony by a
grand juror.'"
'o Ala. St. 1909, No. 191, Spec. Sessr p. 63, Aug. 25, § 12; id. St. 1911, No. 259, p. 249,
Apr. 6, § 32.
[NoUS; add:]
Vt. St. 1910, No. 221, p. 228 (amending Pub. St. §§ 5523-29; stenographer shall not dis-
close testimony taken at a criminal inquest, but this shall not prevent disclosure "on an
order of the Supreme or County Court").
§ 2364. Grounds for Indictment ; Illegal Evidence, ptc.
[Note 1, par. 1 ; add:]
1906, State v. Hopkins, 115 La. 786, 40 So. 166 (motion to quash the indictment; a grand
juror's testimony, and the district attorney's, as to the attorney's advice regarding the
jurors' action, excluded).
1907, United States v. Talhnadge, 14 N. M. 293, 91 Pac. 729.
[JVofe3; add:]
1905, Taylor v. State, 49 Fla. 69, 38 So. 380 (collecting many cases).
1905, State v. Faulkner, 185 Mo. 673, 84 S. W. 967.
1907, People v. Sexton, 187 N. Y. 495, 80 N. Ef. 396.
1904, U. S. V. Cobban, 127 Fed. 713, C. C. 1905, Chadwick v. U. S., 141 Fed. 225, 234,
C. C. A.
[Note 5; add:]
Contra: 1909, People v. Nail, 242 111. 284, 89 N. E. 1012 (misconduct of State's attorney
in the jury-room ; testimony of foreman and of attorney, excluded).
[Note 7; add:]
1904, Nash v. State, 73 Ark. 399, 84 S. W. 497 (here the Court misapplies the secrecy principle).
1855, State v. Baker, 20 Mo. 339.
§ 2371. Testimonial Privilege of the Executive, etc.
[Note 1, par. 1; add:]
1909, R. V. Baines, 1 K. B. 258 (the Prime Minister and the Home Secretary were subpoenaed
to testify as to a breach of the peace committed by woman suffragists at a public meeting ;
on a motion to set aside the subpoenas, the applicants alleged that their "attendance at
the assizes would involve a serious interruption of any public duties as a minister of the
Crown" ; held, that "it must not be supposed that the position which the applicants
occupy affords them any privilege ; they stand in the same position as any other of His
Majesty's subjects").
597
§2373 PRIVILEGED COMMUNICATIONS
§ 2373. Irremovability of Official Records.
[Note 2; add:]
La. St. 1912, No. 242, p. 539, July 11, § 12 (certain public records to be irremovable,
except on giving bond).
U. S. St. 1904, April 19, c. 1398, Stat. L. vol. 33, p. 186 (land-office applications, etc., to
be produced; cited more fully ante, § 1676, n. 11).
[Text, p. 3331 ; at the end, add a new paragraph (4) :]
(4) The right of a citizen or taxpayer to inspect official records in their place
of custody (ante, § 1858, n. 2).
§ 2374. Privilege for Communications by Informers, etc.
[Note 1; add:]
1787, State v. Phelps, Kirby Conn. 282 (State's attorney not allowed to testify "what
the prisoner had disclosed to him, upon an application to be admitted a witness for the
State ; for such disclosures "would tend to defeat the benefits the public may derive from
them").
1909, Michael v. Matson, 81 Kan. 360, 105 Pac. 537 (communication to the district attorney,
privileged ; "in this country the privilege has been treated as covering the communication
itself").
1911, Wells V. Toogood, 165 Mich. 677, 131 N. W. 124 (communications to a deputy-sheriff,
by one complaining of a theft, held privileged).
1913, Sullivan v. Hill, — W. Va. — , 79 S. E. 670 (prosecuting attorney held not privileged,
before a legislative committee, not to disclose his information, or its source, concerning an
alleged bribery for which criminal prosecution was then in contemplation).
1906, Schultz V. Strauss, 127 Wis. 325, 106 N. W. 1066 (defendant held privileged from dis-
closing, on interrogatories of discovery by the plaintiff, his testimony before the grand jury
and district attorney, on which the plaintiff desired to found an action for defamation and
malicious prosecution ; the opinion properly places the ruling on grounds of substantive
law).
[Note 4; add:]
1906, Rogers v. State, 88 Miss. 38, 40 So. 744 (larceny of a package ; R. having been sum-
moned before the grand jiu-y, and testifying that the package was brought back and given
to him for the owner, by a woman to whom he promised secrecy, he was held not privileged
not to disclose her name).
[Note 5, col. 2, 1. 1; add:]
Ont. St. 1904, 4 Edw. VII, c. 23, § 20 (no assessor shall disclose information acquired con-
cerning assessments, etc., "except when examined as a witness before any court").
U. S.: 1906, In re R«id, D. C. E. D. Mich., 155 Fed. 933 (bankruptcy; tax statement
filed by the bankrupt with the Detroit assessors, held privileged for the Detroit assessors,
under Mich. Comp. L. 1897, § 3846, forbidding disclosure).
■ [Note 5, at the end ; add :]
So also the following statutes, for factory inspectors, mine^nspectors, and railway-com-
missions :
Ont. St. 1905, 5 Edw. VII, c. 13, § 30 (a factory-inspector, when called as a witness, " shall
be entitled acting herein by the direction and on behalf of the attorney-general or a member
of the Executive Council to object to giving evidence as to any factory inspected by him
in the course of his official duty"). St. 1906, 6 Edw. VII, c. 11, § 78 (no minmg officer
598
OFFICIAL COMMUNICATIONS §2375
{Note 5 — continued]
"shall be cofnpellable in any court to disclose information acquired by him in his official
position"). St. 1906, 6 Edw. VII, c. 30, § 231 ("AH such returns [by railway companies
to the railway board] of accidents made in pursuance of the provisions of this act shall be
privileged communications, and shall not be evidence in any court whatsoever" except
in enforcing penalty for failure to make returns).
[Note 6 :]
In line 1, add : "and Rev. St. § 4908."
In line 6, add : "and 44 Fed. 294, 299."
Add: Eng. St. 1907, 7 Edw. VII, c. 29, § 68, Patents and Designs Act (reports of examiners
to be privileged, unless the Court certifies "that such production or inspection is desir-
able in the interests of justice").
[Note 6, at the end ; add :]
For the citizen's right to inspect public records, see ante, § 1858, n. 2.
§ 2375. Privilege for Secrets of State.
[Note 3; add:]
1906, Davis v. State, 145 Ala. 69, 40 So. 663 (under Code 1897, § 5086, providing that a
U. S. revenue liquor-license may be proved orally, the defendant was allowed to be asked
if he had one).
1906, State v. Nippert, 74 Kan. 371, 86 Pac. 478 (illegal liquor sales ; the Federal revenue
collector having refused to produce the record of liquor tax-lists or to furnish a copy, under
the rule in Re Weeks, infra, an examined copy was admitted ; the present principle not
considered). 1906, State v. Schaeffer, 74 Kan. 390, 86 Pac. 477 (similar).
1910, Stegall v. Thurman, D. C. N. D. Ga., 175 Fed. 813 (operations of a distillery under
grand jury inquiry for violation of State prohibition law ; the U. S. storekeeper and ganger
on duty thereat, held privileged from disclosing information obtained by him in the course
of duty, and prohibited to be disclosed by U. S. Rev. St. 1878, § 3167, "except as provided
by law," and Treasury Circulars of April 15, 1898, Oct. 10, 1900, and April 18, 1904 ; "the
method prescribed by the Secretary of the Treasury for courts obtaining this information
is an application to the Secretary of the Treasury by the judge of the Court in which the
information is desired" ; Boske v. Comingore followed). 1910, In re Grove, 3d C. C. A.,
180 Fed. 62 (infringement of patent on engines for torpedo-boat-destroyers ; the defendant
having pleaded the official secrecy of plans drawn for the construction of government
vessels, the Secretary of the Navy on request from the Court declared that the proof would
not be detrimental to pubUc interests, and the witness was held compellable).
1906, Meyer v. Home Ins. Co., 127 Wis. 293, 106 N. W. 1087 (tobacco lost by fire; re-
cords of the U. S. internal-revenue department at Milwaukee showing the amount of
goods, held privileged, on demand of the deputy collector ; following Boske v. Comingore,
U. S.).
[Note 4; add:]
1904, Mercer v. Denne, 2 Ch. 535, 544 (ancient plans and maps of seashore boundaries
prepared for the War Office in 1641-47 were excluded, by Farwell, J., because "it would
be most dangerous to admit confidential reports, made to the War Office" ; the ruling is
absurd, first, because the War Office made no claim of privilege, and secondly, because the
offering counsel had become fully conversant with the "confidential" documents, and thirdly,
because the lapse of time had made the secret of no consequence ; no authority at all is
cited). 1905, Mercer v. Denne, 2 Ch. 538, 560 (foregoing ruling affirmed on appeal;
Vaughan Williams, J. : "I agree, although not perhaps exactly on the same grounds").
599
§2375 PRIVILEGED COMMUNICATIONS
[Note 5; add:]
Alta. St. 1910, 2d sess., Evidence Act, c. 3, § 30 (like Ont. Rev. St. 1897, c. 73, § 27).
Ord. St. 1909, c. 43, § 27 (like R. S. 1897, c. 73, § 27).
[Note 8 ; add, at the epd :]
1913, Schall t. Northland M. C. Co., 123 Minn. 214, 143 N. W. 357 (trustee in Federal
bankruptcy court, held not privileged against a subpoena d.t.).
Distinguish of course the question how far a citizen may claim access to and inspection of
judicial or similar records {ante, § 1858, n. 2).
[Text, p. 3341, 1. 18 from above, after "liability" ; insert a new note 9a;]
(" ) The Federal Government's deliberate obstruction, by this means, of the enforcement
of the State Uquor laws has been reprehensible. In Stegall v. Thurman, Fed., cited supra,
n. 3, Newman, J., has some sensible remarks on the seemliness of the Federal government
removing obstructions of this sort from the ordinary course of justice in the State courts.
§ 2380. Physician and Patient ; History of the Privilege, etc.
[Note 3; add:]
1904, Banigan v. Banigan, 26 R. I. 454, 59 Atl. 313.
[Note 5 ; add :]
Mich. : 1904, Dick v. Supreme Body, 138 Mich. 372, 101 N. W. 564 (statute applied to
a hearing before a fraternal insurance board). St. 1905, No. 136 (in prosecutions for illegal
marriage of persons sexually diseased, "any physician who has attended or prescribed for
any husband or wife for either of the diseases above mentioned shall be compelled to
testify to any facts found by him from such attendance"). St. 1909, No. 234, p. 418,
June 2 (amending Comp. St. 1897, § 10181, by adding : provided that on an issue of pro-
bating a patient's will the heirs at law "shall be deemed to be personal representatives of
such deceased patient for the purpose of waiving the privilege" etc.).
Mo. St. 1907, p. 245, Mar. 16 (dying declarations of woman in abortion cases ; attendant
physician is competent to testify, alnd his relation shall not disqualify him).
N. Y. St. 1905, c. 331 (amends C. C. P. 1877, § 834, by inserting after "surgery" the words
"or a professional or registered nurse," and, by adding, at the end, the following : "unless
where the patient is a child under the age of sixteen the information so acquired indicates
that the patient has been the victim or subject of a crime, in which case the physician or
nurses may be required to testify," etc., when the crime is the subject of the inquiry; this
proviso is a poor sop to the demands of justice and does not palliate the atrocity of closing
the physician's mouth where the victim was an adult).
N. C. Rev. 1905, § 1621 (Uke St. 1885, c. 159).
Wis. St. 1911, c. 322, p. 328 (amending Stats. § 4075, by replacing " compelled" with "per-
mitted," and adding, "but as a witness in his own behalf he may disclose such information
in any civil action brought by such patient or his legal representatives to recover damages
for malpractice in such professional attendance, and also in any criminal prosecution for
such malpractice, whenever such patient or his legal representatives shall have first given
evidence relating to such information").
[Note 6; add:]
A careful discussion of the scope and policy of the privilege will also be found in Professor
H. B. Hutchins' article in the Michigan Law Review, II, 687 (1904), "The Physician as an
Expert."
[Text, p. 3351, at the end of the second paragraph ; add a note 6a :]
*" A recent Michigan statute (cited supra, n. 5) commits the absurdity of abolishing the
privilege for sexual disease in certain cases, while retaining it on other facts.
600
PHYSICIAN AND PATIENT §2382
[Note 8; add:]
and Mr. Wm. A. Purrington in the Columbia Law Review, VI, 388 (1906), "An Abused
Privilege."
§ 2381. Confidentiality of Communications, etc.
[Note 1; add:]
1905, Murphy v. Board, 2 Cal. App. 468, 83 Pac. 577.
[Note 2; add:]
1914, Booren v. McWilliams, 26 N. D. 558, 145 N. W. 410.
[Note 4; add:]
1914, Mutual Life Ins. Co. v. Owen, — Ark. — , 164 S. W. 720 (a second physician, attend-
ing the first as a guest and adviser only, held within the privilege).
§ 2382. Professional Character of the Consultation.
[Text, 1. 6 of the §, after "the word" ; add a new note la;]
1909, Laurie Co. v. McCuUough, 174 Ind. 477, 90 N. E. 1014 (a teacher of gymnastic exer-
cises taken by medical advice, held not within the privilege).
1909, Homnyack v. Prudential Ins. Co., 194 N. Y. 456, 87 N. E. 769 (life insurance; St.
1904 and St. 1906, applied to concede the privilege to a professional nurse ; effect of St.
1906 on pending actions, considered).
[Note 2; add:]
1904, Schermer v. McMahon, 108 Mo. App. 36, 82 S. W. 535.
[Note 3; add:]
For a nurse, see N. Y. St. 1905", c. 331, quoted ante, § 2380.
[Notei; add:]
1904, State v. Lyons, 113 La. 959, 37 So. 890 (a coroner-physician, visiting the accused at a
charity-hospital after the affray, held not within the privilege).
1905, Arnold v. Maryville, 110 Mo. App. 254, 85 S. W. 107 (a consultation "only with a
view of qualifying them to testify in the cause," not privileged). 1906, Obermeyer v.
Lageman C. M. Co., 120 Mo. App. 59, 96 S. W. 673 (statements at an interview with the
opponent's physician in which the latter was partly trying to cure and partly trying to get
evidence, held entu-ely privileged). 1907, Smart v. Kansas City, 208 Mo. 162, 105 S. W.
709 (physicians of a city hospital where the plaintiff went for treatment, held all within
the privilege, regardless of whether any one was specially retained).
1910, People v. Austin, 199 N. Y. 446, 93 N. E. 57 (examination of accused made by the
physician in jail at the defendant's request for the purpose of testifying as to sanity ; the
defendant did not call him on the trial, but the prosecution did ; held not privileged).
[Note 5; add:]
1906, Smoot V. Kansas City, 194 Mo. 513, 92 S. W. 363.
1907, State v. Werner,, 16 N. D. 83, 112 N. W. 60 (conversation between the accused, the
State's attorney, and the physician, held not privileged).
A hypothetical question to a physician who has had professional relations with the patient
is of course not privileged : 1904, Crago v. Cedar Rapids, 123 la. 48, 98 N. W. 354.
[Note 6; add:]
Accord: 1910, Ossenkop v. State, 86 Nebr. 539, 126 N. W. 72 (autopsy of the deceased by
a physician employed by defendant).
601
§2382 PEIVILEGED COMMUNICATIONS
[Note 6 — continued]
Contra: 1912, Thomas v. Byron Tp., 168 Mich. 593, 134 N. W. 1021 (privilege allowed,
where the physician's privileged relation to deceased during lifetime facilitated his per-
formance of the autopsy).
The privilege is universally held to include the medical records of a hospital. But quwre
whether it should include the records of a State insane asylum, where the undoubtedly medi-
cal character of the records js- overridden by the public nature of the books {ante, § 1858,
note 2, suppl.).
1913, Massachusetts M. L. Ins. Co. v. Board, — Mich. — , 144 N. W. 538 (mandamus to
compel the trustees of the State Asylum for the Insane to permit inspection of their records
of an insured confined there ; the records held to be within the privilege, because consisting
of entries by medical officer, and the privilege held to override the public natiure of the
books, though this last point is not discussed ; another instance of the bad absurdity of
the privilege).
[Note 7; add:]
Accord: 1907, People v. Furlong, 187 N. Y. 198, 79 N. E. 978 (People v. Hoch followed).
Contra: 1905, McRae v. Erickson, 1 Cal. App. 326, 82 Pac. 209 (privilege applied to the
surgeon of defendant's hospital, treating an injured employee).
1907, Colorado Midland R. Co. v. McGarry, 41 Colo. 398, 92 Pac. 915 (physician sent by
the defendant to treat him professionally, and not merely to get information for defendant,
held within the privilege).
1904, Battis v. Chicago, R. I. & P. R. Co., 124 la. 623,- 100 N. W. 543 (railway company's
surgeon sent to examine plaintiff after the injury, and treating him ; privilege held appli-
cable).
1904, Meyer v. Supreme Lodge, 178 N. Y. 63, 70 N. E. Ill (a physician called by strangers
to, save a would-be suicide, and prescribing for the purpose, is within the privilege, even
though the patient repels his services; Gray, J., and Parker, C. J., diss.).
1907, Union Pacific R. Co. v. Thomas, 152 Fed. 365, 367 (a physician sent by the defendant
to treat the injured plaintiff against the protest of the plaintiff; privilege held applicable).
1913, Arizona 8s N. M. R. Co. v. Clark, 9th C. C. A., 207 Fed. 817, 823 (consultation with
an oculist, employed by the opponent, but called by the plaintiff and supposed by the
plaintiff to have come at his own request alone, held privileged).
§ 2383. Communications Necessary for Prescription.
[Note 1; add:]
1905, McRae v. Erickson, 1 Cal. App. 326, 82 Pac. 209 (details of the cause of the injury,
held privileged).
1904, Battis v. Chicago, R. I. & P. R. Co., 124 la. 623, 100 N. W. 543.
1912, Steketee v. Newkirk, 173 Mich. 222, 138 N. W. 1034 (testimony held not privileged,
on the facts).
1908, Green v. Terminal R. Ass'n, 211 Mo. 18, 109 S. W. 715 (statement of the place where
plaintiff was at the time of the injury, made to the defendant's surgeon in response to their
inquiries in preparation for a report held not privileged on the facts).
1908, Re Newcomb's Estate, 192 N. Y. 238, 84 N. E. 950 (a question as to the deceased's
abihty to travel, held improper, though it specified no disease; "the question is close").
1914, Booren v. McWilliams, 26 N. D. 558, 145 N. W. 410 (seduction under promise of
marriage ; the woman's statements to the physician, made a week after the child's birth,
and concerning the promise to marry, held not within the privilege; two judges diss.).
1909, Missouri Pac. R. Co. v. Castle, 8th C. C. A., 172 Fed. 841 (a statement by a person
with a crushed ankle as to the cause of the injury, held not necessary).
1905, James v. State, 124 Wis. 130, 102 N. W. 320 (examination of a raped child, merely to
determine the existence of venereal disease, not privileged).
602
PHYSICIAN AND PATIENT §2385
[Note 2, par. 1; add:]
1909, Madsen v. Utah L. & R. Co., 36 Utah 528, 105 Pac. 799 (the Court is to determine
what is necessary, the physician's statement not being conclusive; the necessity must
specifically appear in each instance, and not merely be presumed from the relation, but
the inference may be drawn from the circumstances; Straup, C. J., diss.).
[Note 2, par. 2; add:]
Accord: 1909, Madsen v. Utah L. & R. Co., 36 Utah 528, 105 Pac. 799 (cited supra, this
note).
Contra: 1905,'McRae v. Erickson, 1 Cal. App. 326, 82 Pac. 209 ("The physician must
commonly be regarded as the sole judge").
§ 2384. Information, Active axid Passive.
[Note 2; add:]
1904, Towles v. McCurdy, 163 Ind. 12, 71 N. E. 129 ("all that the physician sees or observes"
is privileged; here, the facts as to a testator's sanity).
1904, Battis v. Chicago, R. I. & P. R. Co., 124 la. 623, 100 N. W. 543 (like Prader v.
Ass'n).
1907, Mansbach's Estate, 150 Mich. 348, 114 N. W. 65 (mental condition; privilege held
applicable).
1906, Smoot V. JCansas City, 194 Mo. 513, 92 S. W. 363 (Gartside D. Ins. Co. followed).
1906, Myer's Will, 184 N. Y. 54, 76 N. E. 920 (insanity; privileged).
[Note 3, par. 1 ; add:]
1905, Haughton v. Mtna, L. Ins. Co., 165 Ind. 32, 73 N. E. 592 (fact of professional attend-
ance just before the making of the policy, admitted).
1911, State v. Stapp, 65 Wash. 438, 118 Pac. 337 (cross-examination to an operation for
abortion at a hospital, without naming or identifying the patient, held not a violation of
the privilege).
§ 2385. Criminal Cases, Malpractice.
[Note 1; add:]
1905, People v. Griffith, 146 Cal. 339, 80 Pac. 68.
[Note 2; add:]
1905, McKenzie v. Banks, 94 Minn. 496, 103 N. W. 497 (commimications for the purpose
of securing the physician's service for a criminal abortion are not privileged).
1912, Thrasher v. State, 92 Nebr. 110, 138 N. W. 120 (rape under age, the woman being
deceased ; the privilege held not available for the defendant to exclude testimony of the
physicians attending her). •
N. Y. St. 1905, c. 331 (quoted ante, § 2380, n. 5). '
1912, State v. Law, 150 Wis. 313, 136 N. W. 803, 137 N. W. 457 (Stats. 1898, § 4078rf,
providing that no person shall be privileged etc. in prosecutions under § 4352 — abortion
— or § 4583, is not limited to the privilege against self-crimination, but takes away also
the present privilege under § 4075, in a prosecution for abortion ; two judges diss.).
[Note 3; add:]
Accord: Wis. Stats. 1911, c. 322, p. 328 (quoted ante, § 2380; but a comparison with the
Indiana case, Aspy v. Botkins, infra, will show that this patchwork legislation did not go
as far as it ought to have gone, to relieve the medical practitioner from the unfairness of
the rule).
603
§2386 PRIVILEGED COMMUNICATIONS
§ 2386. Whose is the Privilege ; Claim, etc.
[Note 1 ; add, at the end :]
Of course the privilege is that of the patient as such, and applies equally for patients not
■parties to the case ; this is everywhere assumed and conceded :
1906, Myer's Will, 184 N. Y. 54, 76 N. E. 920 (members of the testatrix' family).
[Note'i; add:]
On the general principle for all privileges {arde, §§ 2270, 2321), a party not a patient cannot
as such object to a denial of the privilege ; and this principle ought to be enforced of tener
than it is :
1912, Thrasher v. State, 92 Nebr. 110, 138 N. W. 120 (rape under age; the woman being
deceased, the defendant was not allowed to invoke the privilege to exclude medical testi-
mony to her condition).
[Note 4, par. 1 ; add:]
1909, Laurie Co. v. McCullough, 174 Ind. 477, 90 N. E. 1014.
1905, Arnold v. Maryville, 110 Mo. App. 254, 85 S. W. 107.
1906, Pennsylvania R. Co. «. Durkee, 147 Fed. 99, C. C. A. (applying the N. Y. Code).
But the opponent may at least call tha physician and force the patient-party to object and
make claim :
1903, State v. Booth, 121 la. 710, 97 N. W. 74; this is on the principle of § 2268, ante.
§ 2388. Waiver, in general.
[Note 2; add:]
and the forceful opinion of Paris, J., in Epstein v. Pennsylvania R. Co., 250 Mo. 1, 156
S. W. 699.
[Note 3; add:]
1906, Roche v. Nason, 185 N. Y. 128, 77 N. E. 1007 (the trial Court's ignoring of an ex-
press waiver, here held harmless).
Otherwise, the particular circumstances are to be considered :
1907, Druhe H. L. Co. v. Fishbein, 101 Minn. 81, 111 N. W. 950 (client's informal ex-
pression of willingness that the physician should testify, made on the stand and before
consulting his attorney, held not a waiver).
[Note 5; add:]
but it was recognized in the following : 1906, Williams v. Spokane F. & N. R. Co., 42 Wash.
597, 84 Pac. 1129.
[Noted; add:]
Accord: 1906, Trull v. Modern Woodmen, 12 Ida. 318, 85 Pac. 1081.
1905, Western Travelers' Ace. Ass'n v. Munson, 73 Nebr. 858, 103 N. W. 688 (waiver in
the constitution of a benefit association, held valid).
Contra, under statute : 1904, Meyer v. Supreme Lodge, 178 N. Y. 63, 70 N. E. Ill (a waiver
of the privilege in an insurance contract is not effective under C. C. P. § 836 as amended
in 1891 ; and the Federal Constitution cannot be invoked to protect a New York contract) .
1905, Supreme Lodge v. Meyer, 198 U. S. 508, 25 Sup. 754 (Holden v. Ins. Co., N. Y., fol-
lowed, in construing a New York contract).
§ 2389. Waiver by Bringing Suit, etc.
[Note 2; add:]
1907, Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709 (personal injuries; suit held not
a waiver ; the reasoning of the text above, answered by Woodson, J., but not convincingly ;
604
PHYSICIAN AND PATIENT §2390
[Note 2 — contimied]
the present ruling, excluding three attending physicians to an alleged injury to a knee of
a person who had concededly suffered tuberculosis of the knee and had already been crippled
in it, shows what a farce the privilege is ; this whole investigation, shutting out by law the
most important testimony, was a huge parody on justice, so far as justice purports to rest
on truth).
[Note 3; add:]
1911, Woods V. Lisbon, 150 la. 433, 130 N. W. 372 (plaintiff's testimony to the physician's
treatment, held a waiver as to all physicians engaged in the same operation).
1913, R«ed V. Rex Fuel Co., — la. — , 141 N. W. 1056 (Woods v. Lisbon followed). ,
1913, Epstein v. Pennsylvania R. Co., 250 Mo. 1, 156 S. W. 699 (cited more fully post,
§ 2390, n. 3).
[Note 4 ; add, under Contra :]
1905, Indianapolis & M. R. T. Co. v. Hall, 165 Ind. 557, 76 N. E. 242 (personal injury;
ruling in Williams ji. Johnson approved).
1904, Battis v. Chicago, R. I. & P. R. Co., 124 la. 623, 100 N. W. 543.
1911, Slater v. Sorge, 166 Mich. 173, 131 N. W. 565 (see the citation post, § 2390,
n. 3).
1904, HoUoway v. Kansas City, 184 Mo. 19, 82 S. W. 89 (like Burgess v. Sims D. Co., la.,
supra; but a voluntary testimony by the party to the circumstances of a physician's ex-
amination is a waiver of the privilege).
1905, May v. Northern P. R. Co., 32 Mont. 522, 81 Pac. 328 (plaintiff's testimony to her
injury and its treatment by two physicians, held not a waiver as to the testimony of a
third).
1912, Larson v. State, 92 Nebr. 24, 137 N. W. 894 (the defendant's answers on cross-examina-
tion as to his treatment by Dr. H., held not to be a waiver of the privilege allowing the prose-
cution to call Dr. H.).
1907, Union Pacific R. Co. v. Thomas, 152 Fed. 365, 369.
1907, Noelle v. Hoquiam L. & S. Co., 47 Wash. 519, 92 Pac. 372 (Root, J., with Hadley,
C. J., diss., in an opinion of sound sense and logic).
[Note 7; add:]
1906, Elliott V. Kansas City, 198 Mo. 593, 96 S. W. 1023 (failure to claim privilege for
testimony of the same physician to substantially the same facts at a prior trial of the same
cause is a waiver of the privilege for the subsequent trial also ; following McKinney v.
R. Co., N. Y.).
§ 2390. Waiver by Calling the Physician.
[Note 2; add:]
1908, Pittsburgh C. C. & St. L. R. Co. v. O'Conner, 171 Ind. 686, 85 N. E. 969 (the plain-
tiff's calling, at the first trial, of a physician who had examined him, held a waiver permitting
the defendant to call him at the second trial ; the same facts were the subject of both testi-
monies).
1905, Nugent v. Cudahy P. Co., 126 la. 517, 102 N. W. 442 (cross-examination, held no
waiver on the facts).
[NoteS; add:]
1913, Mays v. New Amsterdam C. Co., 40 D. C. App. 249, 257 (calling one physician is
not a waiver as to another physician who examined at a separate time; distinguishing
Baltimore & O. R. Co. v. Morgan, 35 D. C. App. 195).
605
§2390 PRIVILEGED COMMUNICATIONS
[Nate 3 — eontimiedl
1911, Jones v. Caldwell, 20 Ida. 5, 116 Pac. 110 (calling one physician is not a waiver as
to the other).
1911, Slater v. Sorge, 166 Mich. 173, 131 N. W. 565 (plaintiff consulted Dr. A for a dog-
bite, and then Dr. B ; at the trial he testified to both consultations, and then called Dr. B ;
held, that the defendant could not call Dr. A ; following Dotton v. Albion).
[Note 3; add:]
1911, Missouri & N. A. R. Co. v. Daniels, 98 Ark. 352, 136 S. W. 651 (calling one physician
is not a waiver of the privilege for other physicians' testimony to the same ailment; another
of these permissions to plaintiffs to misuse the privilege solely as an instrument for winning
a case, and not as a protection for privacy of one's ailments ; Dr. F. was allowed to testify
that the plaintiff had a prolapsus of the uterus, but two other physicians were not allowed
to testify to the same fact ; obviously the plaintiff had no desire to keep private the fact ;
hence, the privilege lost its only purpose, and became simply a tool for tinkering with the
truth).
1907, Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709 (caUing one of several physicians
is not a waiver as to others ; Lamm and Graves, JJ., diss. ; "to hold so leaves a travesty on
justice at the whimsical beck and call of a litigant" ; the opinion of Lamm, J., is one of the
signs observable of the judicial realization of the preposterous absurdity of the privilege in
to-day's practice). 1913, Epstein v. Pennsylvania R. Co., 250 Mo. 1, 156 S. W. 699 (three
physicians examined the plaintiff while in the hospital ; the defendant offered the testimony
of one, to which the defendant did not object ; but to the testimony of the other two, when next
offered, he then objected ; already he himself and a physician called by him had testified
to his injuries ; held, that the plaintiff's own testimony, with its references to the treatment
by the first of the three doctors, was a waiver, as to the other two ; expressly reserving the
question whether waiver by calling or not objecting to one physician is a waiver as to others ;
Woodson, J,, diss. ; excellent opinion by Faris, J., one of the few that has shown a correct
moral attitude to the privilege). 1914, State v. Long, — Mo. — , 165 S. W. 748 ; (seduction
in 1909 ; issue whether the prosecutrix was chaste or pregnant in 1908 ; the State having
called a physician who attended her for womb trouble in Dec, 1908, the defendant sought
to use two other physicians ;who attended her for the same trouble in Nov., 1908 ; held that
the State by offering the testimony of one physician, with the prosecutrix' consent, as to a
specific ailment, waived the privilege as to all other physicians consulted for that ailment ;
liberal opinion, harmonizing prior authorities, by Graves, J. ; Woodson, J., concurring,
because "can see no useful purpose to be achieved by my continual dissent").
[Note 4, par. 2; add:l
1910, Brotherhood of Painters v. Barton, 46 Ind. App. 160, 92 N. E. 64 (in an action on a
death policy, to show the cause of death, the record of a city board of health, based on the
physician's certificate required by law to be filed, was excluded, partly on the ground of
privilege ; this is absurd, for the public filing has already destroyed the whole virtue of the
privilege).
Contra: 1906, Krapp v. Metrop. L. Ins. Co., 143 Mich. 369, 106 N. W. 1107 (physician's
certificate of death filed as required by law, and admissible under Comp. L. § 4617, cited
ante, § 1644, held admissible; the former statute not to be overridden by the present
privilege).
So too for a deposition taken on behalf of the patient :
1907, Clifford v. Denver k R. G. R. Co., 188 N. Y. 349, 80 N. E. 1094 (the plaintiff took
the physician's testimony in a deposition, with cross-interrogatories and answers, but rested
without reading any part of it ; held that the taking and filing of the deposition was a
waiver of the secrecy of the privilege, and that the statutory amendments as to the form
of express waiver did not apply to such a case ; careful opinion by Vann, J. ; such a victory
of common sense over the quiddities of the statute is matter for congratulation).
606
PHYSICIAN AND PATIENT §2394
§ 2391. Waiver by Deceased Patient's Representative.
[Notel; add:]
N. Y. : the amendments of 1891-1899, cited ante § 2380, n. 5, have modified the rule.
Wis.: mi, Hunt's Will, 122 Wis. 460, 100 N. W. 874 (will contest; the contestants may
not waive the privilege ; "no one, save the patient himself," can do so).
N. D. : 1910 Auld v. Cathro, 20 N. D. 461, 128 N. W. 1025 ("the privilege cannot be waived
by the heirs and personal representatives" ; following the New York doctrine, but ignoring
the feature that the N. Y. Code has a peculiar clause about express waiver).
[Note 2; add:]
Colo. : 1906, Shapter's Estate, 35 Colo. 578, 85 Pac. 688 (Thompson v. Ish, Mo., followed).
Ind. : the later cases look the other way : 1901, Brackney v. Fogle, 156 Ind. 535, 60 N. E.
303 (see the next case). 1904, Towles v. McCurdy, 163 id. 12, 71 N. E. 129 ("This
Court in Brackney v. Fogle expressly decided that the rule announced in Kern v. Kern
[ante, § 2315, n. 2, denying the privilege to an attorney attesting a will] did not apply to
the testimony of physicians, . . . even where the controversy was confined to the heirs
and devisees of the decedent"). 1906, Heaston v. Kreig, 167 Ind. 101, 77 N. E. 805 (on
the facts, held that the privilege cotild be waived only by the executor 'who is seeking to
support a will prima facie valid). 1908, Scott v. Smith, 171 Ind. 453, 85 N. E. 774 (while
the personal representative may waive the privilegef to protect the interests of the estate,
yet an administrator may not waive it in a proceeding to remove himself).
la.: 1906, Long v. Garey Inv. Co., — la. — , 110 N. W. 26 (action by creditors to reach
property transferred by the deceased, fraud of creditors and mental incapacity' being the
grounds of the action ; held that the administrator could waive the privilege, so far as the
issue of incapacity was concerned).
Kan. : 1911, Fish v. Poorman, 85 Kan. 237, 116 Pac. 898.
Mich.: 1907, Mansbach's Estate, 150 Mich. 348, 114 N. W. 65 (devisee seeking probate,
held not entitled to waive) .
Minn. : 1907, Olson v. Court of Honor, 100 Minn. 117, 110 N. W. 374 (defence of suicide, in
an action on an insurance policy ; the deceased representative allowed to call the physician ;
"thepurposeof the statute is to protect the patient, and not his adversary; . . . as a general
rule, those who represent him after his death may also waive the privilege, for the protection
of interests which they claim under him" ; good opinion by Start, C. J.). 1908, Mageau v.
Great Northern R. Co., 103 Minn. 290, 115 N. W. 651 (Olson v. Court of Honor approved ;
but whether a husband may waive, in an action for loss of wife's services, not decided).
Nebr. : 1907, Parker v. Parker 78 Nebr. 535, 111 N. W. 119 (proponent allowed to waive the
privilege).
§ 2394. Priest and Penitent ; Privileged Communications ; History, etc.
[Note 3, last line; add:]
Mr. Badeley's arguments are criticised in a note in 6 Jurist, N, s., pt. 2, p. 319 (1860).
[Note 6; add:]
and the instances cited in L. C. J. Coleridge's letter quoted supra in the text.
[ Text, p. 3363, at the end ; add :]
1890, L. C. J. Coleridge, Letter to Mr. Gladstone (Life and Correspondence, 1904, II,
364) : "I should not bore you, but I think perhaps it may interest you to know what Willes
(Sir James) once told me he thought as to confession. He was, on the whole, the greatest
and largest lawyer I ever knew, and I knew Jessel, Cairns and Campbell. I defended Con-
stance Kent, John Karslake prosecuted her, and Willes tried her at Salisbury. Wagner was
to have been a witness, and Willes had made up his mind that he should have to hold one
607
§2394 PAROL EVIDENCE RULES
[Text, p. 3363 — contimied]
way or the other as to the sanctity of confession. He took infinite pains to be right and he
was much interested, because the point, since the Reformation, had never been decided.
There were strong dicta of strong Judges — Lord Ellenborough, Lord Wynford and Alder-
son — that they would never allow Counsel to ask a clergyman the question. Oh the other
hand, HUl, a great lawyer and good man, but a strong Ulster Protestant, had said there was
no legai privilege in a clergyman. The thing did not come to a decision, for Constance
Kent pleaded guilty ; and Karslake told me he should never have thought of putting the
question to Wagner ; and I had resolved if he did (but I knew he was a gentleman) that as
an advocate I would not object, but use it in my speech. Willes, however, I suppose did
not know us quite so well as we knew each other ; and he had prepared himself to uphold my
objection if I made it. He said he had satisfied himself that there was a legal privilege in a
priest to withhold what passed in confession. Confession, he said, is made for the purpose
of absolution. Absolution is a judicial act. The priest in absolving acts as a Judge, and
no Judge is ever obliged to state his reasons for his judicial determination. This, you see,
puts it on groimds of general law, and would be as applicable to Manton, Oliver Cromwell's
chaplain, who, most certainly, heard confessions and absolved, as to the Pope himself.
Whether the English Judges would have upheld Willes's law I own I doubt, but I thought
it might interest you to know the opinion, and the grounds of it, of so great a lawyer
and so really considerable a man. Practically, while Barristers and Judges are gentle-
men the question can never arise. I am told it never has arisen in Ireland in the worst
times."
§ 2395. Statutes recognizing the Privilege. ,
[Notel; add:]
Nev. St.l905, c. 113 (amending St. 1869, § 383, being Gen. St. 1885, § 3405, supra, by chang-
ing "cannot" to "shall not," and omitting the words after "character").
[Note 2; add:]
1906, State v. Morgan, 196 Mo. 177, 95 S. W. 402 (communication to a minister not profes-
sionally admitted).
1905, Colbert v. State, 125 Wis. 423, 104 N. W. 61 (interview between a priest and
a. parishioner, held not a confession to him professionally).
§ 2396. Policy of the Privilege.
[Note 1; add:]
The pith of the matter can also be seen in L. C. J. Coleridge's letter, quoted ariie, § 2394.
§ 2405. Parol Evidence Rules ; (A) History.
[Note 7, at the end ; add :]
So also in the English borough courts, which earlier passed out of formalism : Bateson,
" Borough Customs," II, Introd. pp. 150-152 (Selden Soc. Pub., XXI ; 1906).
§ 2406. Creation of Legal Acts ; Subject must concern Legal Relations.
[Note 6, par. 1 ; add :]
1904, Fleming v. Morrison, 187 Mass. 120, 72 N. E. 499 (the testator's declaration to the
attesting witness, after the attestation, that "it was a fake, made for a purpose," admitted,
and the document held void).
608
A. CREATION OF A LEGAL ACT § 2408
[Note 7; add:]
1911, Lavalleur v. Hahn, 152 la. 649, 132 N. W. 877 (contract intended to be a sham, in
fraud of a third person ; facts shown ; the opinion is hazy on the theory, and uses the term
"fraud" too loosely ; the parol evidence rules concededly stifle the revelation of a great deal
of fraud ; there is no general principle that fraud may be shown ; rather the contrary).
1904, Humphrey v. Timken C. Co., — Kan. — , 75 Pac. 528 (order of purchase signed by
H. ; H. allowed to show an understanding that he was nominal purchaser only, B. being the
real purchaser but insolvent, and the seller being desirous to evade proceedings by B.'s
creditors ; this is apparently unsound).
[Text, p. 3381, line 4 from end of section ; add a note 8 :]
' Of course, the facts constituting the real transaction, and making it void for illegality,
may here always be shown : 1908, Clemens v. Crane, 234 111. 215, 84 N. E. 884 (the rule
does not prevent proof of usury in a loan). 1903, Wheeler v. Metrop. Stock Exchange,
72 N. H. 315, 56 Atl. 754 (wagering contract).
§ 2408. Act must be Final ; Delivery, as applied to Deeds, etc.
[Note 2; add:]
1905, Grilley v. Atkins, 78 Conn. 380, 62 Atl. 337.
[NoteS; add:]
1912, Culver v. Carroll, 175 Ala. 469, 57 So. 767.
1905, Spacy v. Ritter, 214 111. 266, 73 N. E. 447. 1904, Van der Aa v. Van Drunen, 208 111.
108, 70 N. E. 33 (a deed held on the facts not delivered). 1905, Coleman v. Coleman, 216
111. 261, 74 N. E. 701 (delivery to a third person for the grantor's children ; "the test is the
intent with which the act or acts relied on as the equivalent or substitute for actual de-
livery were done"). 1906, Blake v. Ogden, 223 111. 204, 79 N. E. 68. 1906, Phelps v.
Pratt, 225 111. 85, 80 N. E. 69. 1909, Calleraud v. Plot, 241 111. 120, 89 N. E. 266 (deed de-
posited with a notary and left there until the grantor's death). 1911, De Graff v. Manz,
251 111. 531, 96 N. E. 516. 1912, Weigand v. Rutschke, 253 lU. 260, 97 N. E. 641 (deed).
1904, Emmons v. Harding, 162 Ind. 154, 70 N. E. 142 (elements of delivery considered).
1906, Foreman v. Archer, 130 la. 49, 106 N. W. 372.
1909, Flynn v. Flynn, 17 Ida. 147, 104 Pac. 1030 (good opinion by Sullivan, C. J.).
1907, Young v. McWilliams, 75 Kan. 243, 89 Pac. 12.
1907, Wilkins v. Somerville, — Me. — , 66 Atl. 893.
1909, Hearn v. Purnell, 110 Md. 458, 72 Atl. 906.
1904, Roup V. Roup, 136 Mich. 385, 99 N. W. 389. 1912, Luscombe v. Peterson, 173 Mich.
165, 138 N. W. 1057.
1905, Rausch S.Michel, 192 Mo. 293, 91 S.W. 99. '
1908, Rowley v. Bowyer, 75 N. J. Eq. 80, 71 Atl. 398. 1909, Gould v. Hurley, 75 N. J. Eq.
512, 73 Atl. 129 (deed to H., handed by the grantor to her father, etc.).
1904, Powers v. Rude, 14 Okl. 381, 79 Pac. 89 (escrow).
1913, Buchanan v. Clark, 164 N. C. 56, 80 S. E. 424.
1909, Morgan v. Morgan, 82 Vt. 243, 73 Atl. 24 (deed handed by grantor to town clerk, with
instructions to file but not to record now ; the clerk afterwards recorded on instructions
from the grantee and handed it to the grantee ; held, no delivery).
1913, Leftwich v. Early, — Va. — , 79 S. E. 384 (deed of life estate, retained in grantor's
"Dosscssion) >
1904, Kitto'e V. WUley, 121 Wis. 548, 99 N. W. 337.
1910, Jackson v. Lamar, 58 Wash. 383, 108 Pac. 946.
For a complete and scholarly treatment of the Illinois cases, see Mr. Albert S. Long's
article, "Delivery of Deeds in Illinois" (Illinois Law Rev., VIII, 159) and notes in later
609
§2408 PAROL EVIDENCE RULES
[Note 3 — contintbed]
volumes of the Illinois Law Review. See also Professor H. A. Bigelow's valuable article,
" Conditional Deliveries of Deeds of Land" (Harvard Law Rev., XXVI, 565).
[Note 4, par. 1 ; add :]
1911, Hammond v. McCuUough, 159 Cal. 639, 115 Pac. 216.
1912, Walker s. Green, 23 Colo. App. 154, 128 Pac. 855.
1908, Bowers «. Cottrell, 15 Ida. 221, 96 Pac. 936 (an especially interesting case).
1908, White ». Willard, 232 111. 464, 83 N. E. 954 (voluntary conveyance).
1909, Good «. Williams, 81 Kan. 388, 105 Pac. 433 (deed returned to grantor to be recorded
in the locus of the land).
[Note 4, par. 1 ; add:]
1906, Interstate Inv. Co. v. Bailey, — Ky. — , 93 S. W. 578. 1908, O'Neal v. Sovereign
Woodmen, 130 Ity. 68, 113 S. W.'52.
1907, Blackwell v. Blackwell, 196 Mass. 186, 81 N. E. 910.
1904, Chastek v. Souba, 93 Minn. 418, 101 N. W. 618.
1909, Russel v. Close's Est., 83 Nebr. 232, 119 N. W. 515 (contract for services as nurse).
1909, McGuire v. Clark, 85 Nebr. 102, 122 N. W. 675.
1905, Wheaton v. Liverpool & L. & G. Ins. Co., 20 S. D. 62, 104 N. W. 850 (insurance policy).
1912, Henry v. PhiUips, 105 Tex. 459, 151 S. W. 533.
1865, Younge v. Guilbeau, 3 Wall. 636.
1908, Kershner v. Henderson, 48 Wash. 228, 93 Pac. 323 (deed and will).
[Note 4, par. 2 ; add :]
1908, Matheson v. Matheson, 139 la. 511, 117 N. W. 755.
1913, Houlton v. Houlton, 119 Md. 180, 86 Atl. 514.
[Note 4, par. 3 ; add:]
1913, In re Van Alstyne, 207 N. Y. 298, 100 N. E. 802 (gift of personalty; requisites of
delivery discussed).
[Note 5; add:]
1911, Horton v. Stone, 32 R. I. 499, 80 Atl. 1 (replevin bond, delivered by one of the sureties
to the other with the condition that the principal sign before delivery to the obligee, but the
document was delivered in breach of that condition; the document held not binding).
[NoUQ, 1. 1; add:]
1913, Thurston ». Tubbs, 257 111. 465, 100 N. E. 947.
1908, Matheson v. Matheson, 139 la. 511, 117 N. W. 755.
1907, Nolan v. Otney, 75 Kan. 311, 89 Pac. 690 (an interesting case, and a careful opinioo
by Mason, J.).
1906, Craddock v. Barnes, 142 N. C. 89, 64 S. E. 1003 (good opinion by Walker, J.).
1910, O'Brien v. O'Brien, 19 N. D. 713, 125 N. W. 307.
1913, Jackson v. Jackson, 67 Or. 44, 135 Pac. 201.
[Note&,\. 4; cmW;]
1905, Grilley v. Atkins, 78 Conn. 380, 62 Atl. 337.
1907, Mclntyre ». Mclntyre, 147 Mich. 365, 110 N.,W. 960.
[Note Id; add:]
1911, Dennison v. Barney, 49 Colo. 442, 113 Pac. 519.
1905, Bieber v. Gans, 24 D. C. App. 517 (bond ; distinguishing Burke ®. Dulaney, U. S.,
post, § 2409, n. 6, and confining the rule to sealed instruments).
610
A. CREATION OF A LEGAL ACT §2408
[Note 10 — continued]
1905, Whitney v. Dewey, 10 Ida. 633, 80 Pac. 1117 (the opinion calls it a " well-settled
principle of law," and cites the early English authorities, ignoring the later ones).
1908, Wipfler v. Wipfler, 153 Mich. 18, 116 N. W. 544 (where the inequity of the rule is
illustrated).
1908, Hamlin v. Hamlin, 192 N. Y. 164, 84 N. E. 805.
1905, Richmond v. Caruthers, 103 Va. 774, 50 S. E. 265 (maintaining the old-fashioned dis-
tinction between sealed and unsealed instruments).
1909, Dorr v. Midelburg, 65 W. Va. 778, 65 S. E. 97.
[Note 11, add:]
1905, Graham v. Remmel, 76 Ark. 140, 88 S. W. 899 (explaining the escrow rule as involving
a condition subsequent only).
1906, Anderson v. Goodwin, 125 Ga. 663, 54 S. E. 679 (deed delivered by the agent contrary
to condition).
1906, Elliott V. Murray, 225 111. 107, 80 N. E. 77 (good example; prior cases col-
lected).
1906, Oswald v. Caldwell, 225 111. 224, 80 N. E. 131. 1907, Van Norman v. Young, 228
111. 425, 81 N; E. 1060 (that a chattel mortgage was delivered on condition that it was "not
to be enforced" unless the mortgagor desired to borrow money at the mortgagee's bank,
allowed to be shown). 1908, Ward v. ConkUn, 232 111. 553, 83 N. E. 1058 (delivery of deed
on alleged oral conditions). 1908, Benner v. Bailey, 234 111. 79, 84 N. E. 638. 1908, Potter
V. Barringer, 236 111. 224, 86 N. E. 233 ("a deed cannot be delivered to the grantee in
escrow").
1911, Koester v. Northwestern P. H. Co., 24 S. D. 546, 124 N. W. 740 (construing Civ.
Code, §.924, and Cal. Civ. Code, § 1056, which declare that " a grant cannot be de-
livered to the grantee conditionally").
[Note 12; add:]
Approved by Russell, J., in Heitmann v. Commercial Bank, 6 Ga. App. 584, 65 S. E. 590
(1909).
[Noteli; add:]
1908, Kirby v. Kirby, 236 111. 255, 86 N. E. 259 (deed recorded without grantee's knowl-
edge).
1904, Erler v. Erler, 124 la. 726, 100 N. W. 856 (recording of a deed in the name of a son,
instead of the father).
1906, Whiting v. Hoglund, 127 Wis. 135, 106 N. W. 391.
[Note 15, at the end; add:]
Compare the following examples: 1906, Griswold v. Griswold, 148 Ala. 239, 42 So.
554.
1905, Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244.
1904, Waenou v. Handlon, 207 111. 104, 69 N. E. 892. 1907, Noble v. Fickes, 230 111. 594,
82 N. E. 950 (useful opinions, illustrating the arguments on both sides). 1908, Potter v. -
Barringer, 236 111. 224, 86 N. E. 233 (deed). 1910, Phillips v. Gannon, 246 111. 98, 92
N. E. 616 (deed to be defeasible on death in certain circumstances) .-^
1906, Leonard v. Leonard, 145 Mich. 563, 108 N. W. 985.
1905, SchUcher v. Keeler, 67 N. J. Esq. 635, 61 Atl. 434.
1907, Sappingfield v. Kmg, 49 Or. 102, 89 Pac. 142.
Delivery for a gift mortis causa is determined by the same principles as deeds :
1912, Stratton v. Athol Savings Bank, 213 Mass. 46, 99 N. E. 454.
For the presumption of delivery, arising from various circumstances, see post, § 2520.
611
§ 2409 PAROL EVIDENCE RULES
§ 2409. Same : Delivery, as applied to Negotiable Instruments.
■ [Note 5; add:]
1912, Young V. Hayes, 212 Mass. 525, 99 N. E. 327 (promissory note indorsed and handed
over on condition that it should not be binding until the signatures of G. and P. were secured,
held not binding between the parties).
[Note 6; add:]
1905, Graham v. Remmel, 76 Ark. 140, 88 S. W. 899 (note for an insurance policy ; collecting
prior cases).
1914, Norman v, McCarthy, 56 Colo. 290, 138 Pac. 28 (check given, temporarily in lieu of
bond).
1908, Purcell v. Armour Packing Co., 4 Ga. App. 253, 61 S. E. 138 (check; able opinion by
Powell, J.).
1904, Mendenhall v. Ulrich, 94 Minn. 100, 101 N. W. 1057 (note to be operative only on
subsequent acceptance of a policy).
1909, Hunter v. First National Bank, — Ind. — , 87 N. E. 734 (renewal note was sent to
H. to be signed as co-surety; H. signed it, and pencilled "Get S. on this as well," and
handed it to the payee's agent; S. refused to sign; held that this could be shown to deny
H.'sUability).
1911, Smith V. Dotterweich, 200 N. Y. 299, 93 N. E. 985 (note given for insurance policy,
conditionally on the insurer obtaining a loan for the insured; admitted; good opinion by
Werner, J.).
1912, Mitchell v. Altus State Bank, 32 Okl. 628, 122 Pac. 666 (surety's signature on condi-
tion that others first sign).
1907, Hodge J). Smith, 130 Wis. 326, 110 N. W. 192 (here the question also was involved
whether the transferee acquired it in due course). 1908, Paulson v. Boyd, 137 Wis. 241,
118 N. W. 841 (note in connection with stock transfer).
§ 2410. Same : Delivery as applied to Contracts in general.
[Note 3, par. 1 ; add :]
1906, Barton P. M. Co. v. Taylor, 78 Ark. 586, 94 S. W. 713 (contract-memorandum, not
to be binding till corrected ; query, does this overrule Findley v. Means, infra, par. 2 ?).
1909, Heitmann v. Commercial Bank, 6 Ga. App. 584, 65 S. E. 590 (cited more fully post,
§ 2435, n. 3).
1909, Wiltse v. Fifield, 143 la. 332, 121 N. W. 1086 (contract signed but operation reserved
imtil it was re-written with corrections). 1912, Cedar Rapids Nat'l B'k v. Carlson, 156 la.
343, 136 N. W. 659 (note that the defendants were not to be bound unless 24 signatures were
obtained; allowed).
1913, Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562 (agreement for a five days' test of a
business bought).
1910, Colonial Park Estates v. Massart, 112 Md. 648, 77 Atl. 275 (paper signed as temporary
memorandum only).
1904, Elastic Tip Co. v. Graham, 185 Mass. 597, 71 N. E. 117 (defendant was allowed to
nullify a creditor's agreement, signed by him and handed to the plaintiff's agent on condition
that it should not be valid till signed by a certain proportion of other creditors, though this
condition did not come to the plaintiff's own knowledge). 1910, Brown v. Quinby Co., 204
Mass. 206, 90 N. E. 586 (that an agreement, though delivered, was to take effect only after
a corporation should be organized, etc., allowed). 1910, Laprade v. Fitchburg & L. St. R.
Co., 205 Mass. 77, 90 N. E. 982 (negotiations for a release ; one draft having been proposed,
and then a different one, and the testimony differing as to whether the first had been accepted
and the second substituted or no document signed, it was held proper to let the jiu-y consider
the oral negotiations as being possibly the sole actual agreement).
612
A. CREATION OF A LEGAL ACT § 2414
[Note 3 — continued]
1905, Dodd V. Kemnitz, 74 Nebr. 634, 104 N. W. 1069 (contract of sale, delivered subject to
a third person's approval).
1908, Sarasohn v. Kamaiky, 193 N. Y. 203, 86 N. E. 20 (a Jewish rabbi and his son the
plaintiff negotiated for certain payments and transfers by the father ; another rabbi acted
as scribe and drew up a contract ; father and son signed it, and the scribe attested it and
kept it ; a copy certified by the scribe and signed by the father was given to the son ; held
that the scribe's custody of the original did not prevent the contract from being legally
binding as a completed instrument). 1911, Stiebel v. Grosberg, 202 N. Y. 266, 95 N. E.
692 (a release under seal may be shown orally to have been delivered on a condition prece- i
dent as to its validity; but this Court still insists on the theoretical fallacy that "the
deUvery is a separate, independent act from that of executing it").
1913, Blackstad N. Co. v. Parker, 163 N. C. 275, 79 S. E. 606 (draft order, left by defendant
with plaintiff's salesman to await final decision).
1913, Colonial Jewelry Co. v. Brown, 38 Okl. 44, 131 Pac. 1077 (agreement that an order
should not become effective for 5 days, within which it could be canceled, admitted).
1913, Gamble v. Riley, 39 Okl. 363, 135 Pac. 390 (agreement for stock-delivery, conditional
on a third person's approval ; condition allowed to be shown).
1904, O'Connor v. Lighthizer, 34 Wash. 152, 75 Pac. 643 (condition that a contract of
sale should not have effect unless a corporation was organized, allowed to invalidate the
instrument).
1904, State v. Chamber of Commerce, 121 Wis. 110, 98 N. W. 930 (sale of a certificate of
stock on a condition precedent as to the authority of L.).
[Note 4, par. 1 ; add :]
1907, Cavanagh v. Iowa Beer Co., 136 la. 236, 113 N. W. 856 (city license as condition
precedent to a lease).
[Note 6,1. 5; add:]
1907, Hall V. Kary, 133 la. 465, 110 N. W. 930. 1908, CreveKng v. Banta, 138 la. 47, ll5
N. W. 598 (deeds prepared in blank for the grantee's name, and left at a bank).
1909, Mahoney v. Salsbury, 83 Nebr. 488, 120 N. W. 144 (deed blank for grantee, then
filled in by agent, but not recorded till after attachment by grantor's creditors).
[Note 6, at the end ; add :]
Whether the authority to fill the blank may be in parol or must be under seal, is a separate
question; the authorities are noticed in Carr v. McColgan, 100 Md. 462, 60 Atl. 606 (1905).
§ 2411. Publication, as applied to Wills.
[Note 2; add:]
The surviving use of the publication-principle may still be seen in the following case :
1906, Bogert v. Bateman, — N. J. Eq. — , 65 Atl. 238.
. ,?
§ 2413. Intent and Mistake, in general.
[ Text, page 3389, 1. 7 from below ; after "actor,'' .add note la :]
^'' Approved in an elaborate and careful opinion by Russell, J., in Heitmann v. Commer-
cial Bank, 6 Ga. App. 584, 65 S. E. 590 (1909).
§ 2414. Jural Subject of an Act ; Secret Intent, etc.
[Note 1 ; add :]
1910, Lepley v. Anderson, 142 Wis. 668, 125 N. W. 433 (understanding that the document
should serve only as a sham, to deceive a third person liable to one of the parties ; ap-
parently enforced).
613
§2415 PAROL EVIDENCE RULES
§ 2415. Intent and Mistake ; (B) Terms of an Act ; (a) Signing by Mistake ;
(1) Individual Mistake.
[Note 1 ; add:]
1905, Main v. Radney, — Ala. — , 39 So. 981 (order of purchase ; signature held conclusive).
1906, Toledo C. S. Co. v. Garrison, 28 D. C. App. 243, 248 (contract).
1907, Mower Harwood C. & D. S. Co. v. Hill, 135 la. 600, 113 N. W. 466 (signing a contract
without reading it).
1911, Case Threshing M. Co. v. Mattingly, 142 Ky. 581, 134 S. W. 1131 (contract not read
by plaintiff held valid).
1904, Bradley v. Basta, 71 Nebr. 169, 98 N. W. 697 (sale of an engine).
187.0, Upton V. Tribilcock, 91 U. S. 45, 50 (subscription to stock). 1899, Chesapeake &
O. R. Co. «. Howard, 14 D. C. App. 262, 294, 178 U. S. 153, 167, 20 Sup. 880.
1904, Standard Mfg. Co. v. Slot, 121 Wis. 14, 98 N. W. 923 (commission contract). 1905,
Kruse v. Koelzer, 124 Wis. 536, 102 N. W. 1 072 (deed).
For biilB of lading, the peculiar rule in Illinois is different : infra, n. 6.
So for a release signed by a person mentally ill.
1912, Hicks V. Jenkins, 68 Wash. 401, 123 Pac. 526.
[Note 2; add:]
1910, Eckert v. Century F. Ins. Co., 147 la. 507, 124 N. W. 170.
1904, Continental F. Ins. Co. v. Whitaker, 112 Tenn. 151, 79 S. W. 119.
But this rule is certainly not to be a general one :
1909, McAdams v. McAdams, 80 Oh. 232, 88 N. E. 542 (defendant son being in a con-
fidential relation to the plaintiff father, and having drafted a deed of grant from plaintiff
to defendant, the plaintiff claimetl that the deed omitted a certain reservation which
was intended to be inserted ;- the plaintiff maintained that he had not read the deed, but
he had it in his possession for six weeks before signing ; held, that the deed was binding).
Compare the question arising when the insured signs a document containing answers
erroneously transcribed by the insurer's agent (post, § 2416, n. 6, § 2418, n. 2, § 2434, n. 4).
The following cases deal with releases of claims for personal injury; these usually raise
chiefly the question of semi-fraud (post, § 2416), on the one hand, and heedless failure to
rea<l the document, on the other hand ; they turn largely on the facts of each case ; but
so far as the general principle of law is concerned, it seems to belong at this place.
1910, Baltimore & O. R. Co. v. Morgan, 35 D. C. App. 195 (release signed without reading
on the supposition that it was a receipt only).
1908, Kelly v. Chicago R. I. & P. R. Co., 138 la. 273, 114 N. W. 636 (coUcctmg prior cases).
[Note 3; add:]
1904, Letoumeau v. Carbonneau, 35 Can. Sup. 110 (an illiterate's signature is ineffective
"where there is either (a) a request that the document shall be read by thf- party putting? it
forward, which is refused, or (6) where it h misread, or (c) where the contents are misrepre-
sented").
1905, Ray v. Baker, 165 Ind. 74, 74 N. E. 619 (an illiterate held not bound by obligations
signed not negligently through thi- fraud of the beneficiary for amounts in excess of agree-
ment ; the fact that the obligor did not ask the assistance of a third person held not negli-
gence in law on the facts).
1904, Stoner v. Zachary, 122 la. 287, 97 N. W. 1098 (signinx a draft without reading, for
lack of sper-tacles ; issue of negligence allowed). 1909, Blossi v. Chicago & N. W. II. do.,
144 la. fm, 123 N. W. .360 (good opinion, by Deemer, .1).
1904, Wilson, Clost; & Co. v. Pritehett, 00 Md. .%.'!, 58 Atl. 300 (rule for illiterates, eonsid-
ercji).
1908, Siindvall v. Interstate Iron Co., 104 Minn. 499, 116 ,\. W. lllS (alien signing rclea",-;
explained by interpreter ; correctness of interpreter's information, held to be a proper issue).
614
A. CREATION OF A LEGAL ACT §2416
[Note 3 — continued]
1909, First State Bank v. Borchers, 83 Nebr. 530, 120 N. W. 142 (note signed by alien).
1904, Delaware Indians v. Cherokee Nation, 193 U. S. 127, 24 Sup. 342 (contract or treaty
between the Cherokee Nation and the Delaware tribe ; an understanding of the latter as
to the nature of the title conveyed, not considered, the treaty having been read over re-
peatedly to both parties).
1909, Illinois Steel Co. v. Paczocha, 139 Wis. 23, 119 N. W. 550 (lease by an alien).
[Note 4; add:]
1905, Atlantic Coast L. R. Co. r. Dexter, 50 Fla. 180, 39 So. 634 (bUl of lading signed).
1906, Tewes j>. North German L. S. S. Co., 186 N. Y. 151, 78 N. E. 864. * '
Contra: 1905, Hayes v. Adams Exp. Co., 73 N. J. L. 105, 62 Atl. 284.
The following rulings do not go so far :
1909, Florman v. Dodds & C. Ex. Co., 79 N. J. L. 63, 74 Atl. 446 (a shipper presumed to have
read, but not conclusively).
1909, Hill V. Adams Ex. Co., 78 N. J. L. 333, 74 Atl. 674 (similar).
[Note 5; add:]
1906, Wabash R. Co. v. Thomas, 222 111. 337, 78 N. E. 777 (even the signature by the shipper
is not conclusive). 1909, Coats v. Chicago R. I. & P. R. Co., 239 111. 154, 87 N. E. 929
(but here applying the contrary law of Iowa). 1911, Illinois Match Co. v. Chicago R. I. &
P. R. Co., 250 111. 396, 95 N. E. 492.
§ 2416. Same : (2) Individual Mistake known to or induced by the Second
Party.
[Note 1; add:]
1902, Jones Stacker Co. v. Green, 14 Man. 61 (contract for a stacker, not read by the party
signing; held void for misrepresentations, not fraudulent, as to the contents).
1910, St. Louis I. M. & S. R. Co. v. Carter, 93 Ark. 589, 526 S. W. 99 (release of personal-
injury claim). 1910, Stewart v. Fleming, 96 Ark. 371, 131 S. W. 955 (misrepresentations as
to contents by plaintiff's agent, defendant not reading it; prior cases examined). 1913,
Ingram r. Coleman, — Ark. — , 160 S. W. 886 (contract to sell land).
1904, Central of Ga. R. Co. ». Goodwin, 120 Ga. 83, 47 S. E. 641 (release signed without
reading, on fraudulent representations, hold not binding).
1912, Turner v. Mfrers.' & Consumers' Coal Co., 254 III. 187, 98 N. E. 234 (personal injury
release by the injured man while in a hospital).
1907, Eldorado Jewelry Co. v. Darnell, 135 la. 555, 113 N. W. 344 (but the opinion does
not correctly distinguish between fraud and unilateral mistake). 1909, Providence Jewelry
Co. r. Fessler, 145 la. 74, 123 N. W. 957 (good opinion, by Weaver, J.).
1906, Deming Inv. Co. r. Wallace, 73 Kan. 291, 85 Pac. 139.
1909, Atchison T. & S. F. R. Co. v. Coltrane, 80 Kan. 317, 102 Pac. 835 (release of personal
injury claim).
1907," Western Mfg. Co. o. Cotton, 126 Ky. 749, 104 S. W. 758. 1913, New Bell J. C. Co. v.
Oxendine, 155 Ky. S40, 160 S. W. 737 (release).
1908, McNamara v. Boston Elevated R. Co., 197 Mass. 383, 83 N. E. S7S (release signed on
fraudulent representations of its contents by the releasee is not binding ; misrepresentation
distinguished from concealment). 1910, Kiely ». Corbett, 205 Mass. 158, 91 N. E. 410
(fraudulent misrepresentation, not found on the facts). 1912, Kean ii. New York C. & H.
R. R. Co., 210 Mass. 449, 97 N. E. 64 (document signed on fraudulent misrepresentations ia
not binding). 1912, Barry r. Mutual Life Ins. Co., 211 Mass. 306, 97 N. E. 779 (check,
indorsed upon the fraudulent representation of the defendant's agent that it was only a
voucher).
615
§2416 PAROL EVIDENCE RULES
[Note 1 — continued]
1906, Hulett V. Marine S. Bank, 143 Mich. 219, 106 N. W. 879 (notes signed under false
representations as to the tenor).
1905, Eggleston v. Advance T. Co., 96 Minn. 241, 104 N. W. 891 (sale of iatm implements).
1908, Tait v. Locke, 130 Mo. App. 273, 109 S. W. 105 (agent misreading).
1913, Dunston Lithograph Co. v. Borgo, 84 N. J. L. 623, 87 Atl. 334 (order for goods).
1909, Gray v. James, 151 N. C. 80, 65 S. E. 644 (deed misrepresented, and signed without
reading). 1910, McCaU v. Toxaway T. Co., 152 N. C. 648, 68 S. E. 136 (rule of Gray v.
James, supra, applied to a release for personal injury claims).
1906, Stone v. Moody, 41 Wash. 680, 84 Pac. 617 (admirable opinion by Root, J.).
1908, Hale v. Hale, 62 W. Va. 609, 59 S. E. 1056 (interesting case of a grantor alleged to have
been defrauded by his wife and his son ; careful opinion by Poffenburger, J.).
Contra: 1913, Shores-Mueller Co. v. Lonning, — la. — , 140 N. W. 197 (omission to read
because of the other party's fraudulent statements ; document is binding ; careful opinion ;
this seems to be settled doctrine for Iowa ; but is it not unique as well as unsound ?).
[Note 2; add:]
1909, Grimsley v. Singletary, 133 Ga. 56, 65 S. E. 92 (an illiterate signing on fraudulent
misrepresentations is not negligent by mere failiu:e to consult a third person).
1913, Shores-Mueller Co. v. Lonning, — la. — , 140 N. W. 197 (doctrine of neghgence
applied; but this is also erroneous, as is the doctrine of the same case cited in note 1,
supra; has not the Court been misled by failing to notice the distinctions between errors
known and not known to the other party ? In the present case, the document was sued on by
the party perpetrating the alleged rascality, and not by a bona fide transferee ; none of
the present doctrines are supposed to protect proved rascals).
1909, Vaillancourt v. Grand Trunk R. Co., 82 Vt. 416, 74 Atl. 99 (release of right of action
by a workman).
[Note 4; add:]
Howatson v. Webb, [1908] 1 Ch. 1 (defendant signed certain deeds on H.'s representation
that they transferred the E. property ; in fact, they contained a mortgage to W. covenanting
for payments and came to the hands of W. an innocent party ; held binding, as the defendant
knew at least that the deed did deal with that property).
1905, Home Nat'l Bank v. Hill, 165 Ind. 226, 74 N. E. 1086 (a note inserted by trick between
the folds of another paper presented to the defendant for his signature ; not liable, because
not negligent on the facts).
1907, Biddeford Nat'l Bank v. Hill, — Me. — , 66 Atl. 721 (note signed by defendant on
O.'s fraudulent representations that it was a receipt ; as against a bona fide holder, an issue
of negligence was submitted).
1905, Brown jj. Feldwert, 46 Or. 363, 80 Pac. 414 (promissory note signed without reading,
held bipding ; placed on the ground of negligence). .
[Note 5 ; add :]
1905, Daly v. Simonson, 126 la. 716, 102 N. W. 780 (lease by the plaintiff, omitting a clause
giving to the defendant, the lessee and illiterate, the right to remove fixtures ; reformation
allowed).
1911, Weil i). Quidnick Mfg. Co., 33 R. I. 58, 80 Atl. 447 (oral offer of a contract, mis-
written by the offeree, and then signed inadvertently by the offeror; held void, if the
offeree was fraudulent in the mis-writing).
[Note 6; add:]
1909, Prestwood v. Carlton, 162 Ala. 327, 50 So. 254 (warranty of title in a lease ; defendant
allowed to show that he signed the lease in reliance on plaintiff's erroneous draft of the
description of lands included; good opinion, by Mayfield, J.).
616
A. CREATION OF A LEGAL ACT § 2420
[Note 6 — continued]
1903, Wirsching v. Grand Lodge, 67 N. J. Eq. 711, 56 Atl. 713 (deed of transfer signed by
a foreigner, under peculiar circumstances ; rescission allowed ; the other party being under
mistake as to another fact, but not knowing of the grantor's mistake).
1904, Jones v. Warren, 134 N. C. 390, 46 S. E. 740 (here the defendant drew the contract,
and by mistake inserted the wrong price, and the plaintiff was illiterate; reformation
allowed).
1904, Medley v. German A. Ins. Co., 55 W. Va. 342, 47 S. E. 101 (insurance policy written
by the agent of the insurer, and mistakenly reciting the title, etc., of the property, the in-
sured not having read it ; reformation allowed ; Brannon, J., diss.).
Compare the insurance cases cited post, § 2434, n. 4.
§ 2418. Same : (3) Mutual Mistake, as afEecting Boiia Fide Holders.
[Note 1; add:]
1905, Shields v. MongoUon Explor. Co., 137 Fed. 539, 549, C. C. A., semble ("There is no
hard-and-fast rule that one who fails to read a deed before signing it may not seek its ref-
ormation in equity in a case where there has been a mutual mistake").
[Note 2; add:]
Whether reformation can be afforded at law, under code procedure, is an interesting question :
1905, Mtaa Ins. Co. v. Brannon, 99 Tex. 391, 89 S. W. 1057 (misdescription by mutual
mistake in an insiu'ance policy ; whether after a fire the contract can be treated as having
been reformed, for the purpose of allowing recovery).
1905, Phoenix Assur. Co. v. Boyette, 77 Ark. 41, 90 S. W. 284 (similar).
§ 2419. Same : (b) Signing a Document having Blanks, etc.
[NoU 2; add:]
Smith V. Prosser, [1907] 2 K. B. 735 (blank notes signed by defendant and left with an agent
under instructions not to use until authorized by cable; the agent filled them without
authority and negotiated them to jthe plaintiff on false representations ; held, not liable ;
unsound; the opinion of Vaughan Williams, L. J., draws a scholastic and untenable dis-
tinction between placing signed blanks with an agent "for the purpose of its being issued
as a negotiable instrument," and "as custodian only, and intending that the notes should
not- be issued until he sent instructions").
1911, Jarvis v'. Willson, 45 Can. Sup. 401 (blank filled wrongfully by agent).
1914, Gronvold v. Federal Union S. Co., 8th C. C. A., 212 Fed. 908 (bond).
[Note 3; add:]
1913, Osby V. Reynolds, 260 111. 576, 103 N. E. 556.
1911, Guthrie v. Field, 85 Kan. 58, 116 Pac. 217 (a strange case on the facts).
[Note 5; add:]
1910, Diamond Distilleries Co. v. Gott, 137 Ky. 585, 126 S. W. 131 (insertion of a place of
payment in a blank left unfilled on a printed form).
§ 2420. Same : (C) Delivery of a Document, etc., Contrary to Intent of
Maker.
[Note 2; add:]
1907, McKnight v. Parsons, 136 la. 390, 113 N. W. 858 (reviewmg the cases).
1909, Buzzell v. Tobin, 201 Mass. 1, 86 N. E. 923 (check handed to payee by clerk without
authority and negotiated to the holder).
617
§2420 PAROL EViriENCE RULES
[Notei; add:]
1905, Wilbur v. Grover, 140 Mich. 187, 103 N. W. 583; 1906, Blake v. Ogden, 223 111. 204,
79 N. E. 68.
[Note 5 ; add :]
1913, Osby V. Reynolds, 260 111. 576, 103 N. E. 556.
1909, Merck v. Merck, 83 S. C. 329, 65 S. E. 347.
[Note 7; add:]
1905, FrankUn v. Killilea, 126 Wis. 88, 104 N. W. 993 (release). In 2 Illinois Law Rev. 110
<1907) Professor A. M, Kales has a valuable note critically analyzing the theories.
§ 2421. Unilateral Acts: Foregoing Principles applied to Wills, etc.
[Note 1, par. 1 ; add:]
1894, Beamish v. Beamish, L. R. 1 Ire. 7 (Warren, P. J., "ventured to state the following
propositions : 1. Knowledge and approval of a will is necessary, and must be proved ;
2. The execution of a will by a competent testator is presumptive and prima facie evidence
of the fact ; 3., If the competent testator has read the will or heard it read, the presumption
is strong and conclusive, unless there are special circumstances attending the execution of
the will ; 4. Among such special circumstances are fraud, . . . ; 5. Whether read or not,
if in any way the contents of the will have been brought to the notice of the testator, the
effect is the same ; 6. Even where there has been a reading of the will, but the state of the
testator was such that he could not have had an intelligent appreciation of the words, he
must be taken to have known and approved of the will if the words have been bona fide
used by a person whom he trusts to draw it up for him ").
1906, Lipphard v. Humphrey, 28 D. C. App. 355, 360 (knowledge of contents is presumed
for ilUterates also).
1906, Todd V. Todd, 221 111. 410, 77 N. E. 680 (Sheer v. Sheer, supra, approved). 1908,
Jones V. Abbott, 235 111. 220, 85 N. E. 279 (rule applied to a testator's contract not to make
a will).
1908, Ross ». Ross, 1401a. 51, 117 N.W. 1105 (execution is sufficient evidence of knowledge).,
1907, Bradford v. Blossom, 207 Mo. 177, 105 S. W. 289.
1913, Bailey v. Bee, — W. Va. — , 80 S. E. 454.
Compare the following : 1905; Reems' Succession, 115 La. 102, 38 So. 930.
1905, Masseth's Estate, 213 Pa. 136, 62 Atl. 640.
[Note 1, par. 2; add:]
1908, In re Wrenn, 2 Ir. R. 370 (cited more fully post, § 2463, n. 3).
1904, Boston Safe D. & T. Co. v. Buffum, 186 Mass. 242, 71 N. E. 549 (missing words can
be suppUed only where the words used show by necessary implication the words that are
lacking). 1908, Polsey v. Newton, 199 Mass. 450, 85 N. E. 574.
Contra, as to inserting words :
1907, Munro v. Henderson, 1 Ir. R. 440 (a bequest in case of a daughter's death, with an
obvious syntactical omission of a clause ; the Court supplied a clause "to effectuate the in-
tention which was imperfectly expressed but can be gathered from the context and from
the rest of the will").
Compare, however, the acute discussion of this topic in Mr. Roland Gray's article,
"Striking Words out of a Will" (Harvard Law Rev., XXVI, 212), and in Professor Henry
Schofield's article "The So-called Equity Jurisdiction to Construe and Reform Wills"
(Illinois Law Review, VI, 485).
The following seem sound : 1870, Hubbard v. Alexander, L. R. 3 Ch. D. 738 (testator's
declaration, at the time of signing a codicil, that it was a duplicate, admitted). 1875, Hunt's
618
B. INTEGRATION OF A LEGAL ACT §2427
[Note 1 — continued]
Goods, L. R. 3. P, & D. 250 (two sisters, each executing by mistake the will prepared for
the other).
Compare the cases cited ante, § 241L
[Note 3; add:]
and the intent not to sign it iw o testamentary paper (ante, §§ 2406, 2411).
[Note 4, par. 1; add:]
1908, Bloedel v. Cromwell, 104 Minn. 487, 116 N. W. 947.
§ 2423. Motive as making an Act Voidable.
[Note 4; add:]
1905, Rockwell v. Capital T. Co., 25 D. C. App. 98, 112 (fraud ; release under seal).
§ 2425. Integration ; General Theory, etc.
[Note 5; add:]
1906, International Harv. Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93 (collecting
other cases).
§ 2426. B. Integration of Legal Acts ; History.
[Note 8, 1, i; add:]
1308, Pastrel v. Amory, Y. B. 1 Ed. II (Maitland's ed. 1, 32 ; Selden Society Pub. vol. XVII),
Trin. No. 3 (the same point, but the decision was reserved, and is not recorded).
1310, Willoughby v. Queneby, Y. B. 4 Edw. II, Maitland's ed. No. 54, p. 166 (Selden Society
Pub. vol. XXII).
[Note 15,1. 5; add:]
1310, Boys V. Charles, Maitland's Yearbooks, II, 168, 3 Ed. II, No. 8 (Selden Soc. vol. XIX)
("a charter is not a feoffment ; it is only evidence of a feoffment").
1310, Boxendone v. Haliburne, ib. 182, 186, 3 Ed. II, No. 12 ("The deeds are only evidence").
[Note 23, I. 5; add:]
Compare the popular view even a century later :
King Henry VI, pt. II; IV, 2 :
"Dick. The first thing we do, let's kill all the lawyers.
"Cade. Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an
innocent lamb should be made parchment, that parchment, being scribled o'er, should
undo a man ? Some say the bee stings ; but I say 'tis the bee's wax, for I did but seal
once to a thing and I was never mine own man since."
[Note 42; add/]
Compare the article of Mr. Frank Goodwin, " Must an Agreement to Stand Seized have
been in Writing before the Statute of Frauds?" (Harvard Law Rev., VII, 464).
§ 2427. Integration of Unilateral Acts ; Official Documents.
[Text, p. 3423, par. 2, 1. 6, at the end ; add a new note la ;]
'" For Louisiana, the principle of the French law prevails, that an "authentic act," i. e. a
document executed before a public officer, is conclusive. The theoretical position of that
rule is not easy to allot. [See ante, § 1352, n. la.]
619
§ 2429 PAEOL EVIDENCE RULES
§ 2429. Integration of Bilateral Acts ; No Integration at all ; Casual Mem-
oranda.
[Note 1; add:]
1910, Goldsmith v. Marcus, 7 Ga. App. 849, 68 S. E. 462 (unsigned memorandum).
1906, Wright v. Anderson, 191 Mass. 148, 77 N. E. 704 (agreement for dismissing a suit,
etc., held a mere memorandum).
1906, Ivey v. Bessemer C. C. Mills, 143 N. C. 189, 55 S. E. 613 (letter).
§ 2430. Partial Integration ; General Test.
[Text, p. 3426, 1. 2 from below, after "applicable " ; insert a new note la ;]
(1") Cited with approval : 1908, Moran B. Co. v. Pacific C. C. Co., 48 Wash. 592, 94
Pac. 106.
[Note 3; add:] ' ,
1909, Lese v. Lamprecht, 196 N. Y. 32, 89 N. E. 365 (approving this passage).
§ 2432. Receipts and Releases ; Bills of Lading.
[Note 1, par. 1 ; add:]
1905, Stegall v. Wright, 143 Ala. 204, 38 So. 844 (receipt in full allowed to be contradicted,
on the facts).
1907, Brown v. Crown G. M. Co., 150 Cal. 376, 89 Pac. 86.
1912, Prisel v. Coney, 168 Mich. 602, 134 N. W. 989.
1905, Devencenzi v. Cassinelli, 28 Nev. 222, 81 Pac. 41.
N. Y. St. 1909, c. 65, p. 22, Feb. 17, now C. C. P. § 961c (receipt of officer of municipal
corporation, not to be conclusive).
[Note 2, par. 1 ; add :]
1906, Murphy v. Black, 148 Ala. 675, 41 So. 877 (a receipt containing a release, held to
"import a contract").
1877,-Bonesteel v. Gardner, 1 Dak. 372, 46 N. W. 590 (bill of sale).
1905, Lanham v. Louisville & N. R. Co., 120 Ky. 351, 86 S. W. 680.
1909, Offutt V. Doyle, — Ky. — , 122 S. W. 156.
1907, Budro v. Burgess, 197 Mass. 74, 83 N. E. 318.
1905; Interurban C. Co. v. Hayes, 191 Mo. 248, 89 S. W. 927.
1904, Hennessy v. Kennedy F. Co., 30 Mont. 264, 76 Pac. 291 (Ramsdell v. Clark, supra,
followed).
1908, Waters v. Phelps, 81 Nebr. 674, 116 N. W. 783 (contract for a conveyance).
1911, Stiebel v. Grosberg, 202 N. Y. 266, 95 N. E. 692 (release distinguished from a receipt).
[Note 2, par. 2, under BUI of Lading; add:]
1910, Alabama Gt. So. R. Co. v. Norris, 167 Ala. 311, 52 So. 891.
1905, Atlantic Coast L. R. Co. v. Dexter, 50 Fla. 180, 39 So. 634.
1903, Lake Erie & W. R. Co. v. Holland, 162 Ind. 406, 69 N. E. 138 (a recital of a reduction
from the usual freight rate may be contradicted).
[Note 2, par. 2, under Ticket; add:]
1904, Coine v. Chicago & N. W. R. Co., 123 la. 458, 99 N. W. 134.
1907, McCoUum v. Southern P. R. Co., 31 Utah 494, 88 Pac. 663.
The application to an indorsement of payment on commercial paper may be seen post,
§ 2445, n. 6.
620
B. INTEGRATION OF A LEGAL ACT § 2433
§ 2433. Recital of Consideration in a Deed.
[iVo^el; add:]
1906, Gibbons v. Jos. Gibbons C. M. & M. Co., 37 Colo. 96, 86 Pac. 94 (bill of sale of mining
stock).
1909, Bashinski v. Swint, 133 Ga. 38, 65 S. E. 152.
1913, Read v. Gould, 139 Ga. 499, 77 S. E. 642 (separate contract-document as consideration).
1904, Brosseau v. Lawy, 209 111. 405, 70 N. E. 901 (amount of incumbrance assumed by
grantee). 1908, Spence v. Central Accident Ins. Co., 236 111. 444, 86 N. E. 104.
1913, State Bank v. Young, — la. — , 140 N. W. 376.
Ky. St. 1903, §§ 470, 472 ; 1905, Continental Casualty Co. v. Jasper, 121 Ky. 77, 88 S. W.
1078 (applied to an insurance policy).
1907, Way v. Greer, 196 Mass. 237, 81 N. E. 1002 (money loaned for bail).
1909, Koogle v. Cline, 110 Md. 587, 73 Atl. 672.
1909, Scovel v. Detroit, 159 Mich. 95, 123 N. W. 569. 1909, Ruch v. Ruch, 159 Mich. 231,
124 N. W. 52.
1904, Johnson v. McClure, 92 Minn. 257, 99 N. W. 893.
1905, Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036 (recital of receipt of consideration, allowed
to be contradicted, in an action for non-payment; Truly, J., diss.).
1912, Harman v. Fisher, 90 Nebr. 688, 134 N. W. 246 (deed to children ; Root, J., diss.).
1905, Perkins v. Trinity R. Co., 69 N. J. Eq. 723, 61 Atl. 167.
1904, Medical College Laboratory v. N. Y. University, 178 N. Y. 153, 70 N. E. 467 (bill for
reconveyance for non-performance of oral promises).
1909, Shehy v. Cunningham, 81 Oh. 289, 90 N. E. 805 (a father having deeded land to his
son for a recited consideration of $4700, and the son bringing suit after the father's death
for his share of the estate, held, that in determining whether the land was an advancement
the recital as to payment of money by the son could be contradicted).
1904, McGary v. McDermott, 207 Pa. 620, 57 Atl. 46.
1904, WiUcox V. Priester, 68 S. C. 106, 46 S. E. 557.
1905, Windsor v. St. Paul M. & M. R. Co., 37 Wash. 156, 79 Pac. 613. 1908, Warwick
V. Hitchings, 50 Wash. 140, 96 Pac. 960.
1904, Lathrop v. Humble, 120 Wis. 331, 97 N. W. 905. 1903, Halvorsen v. Halvorsen, 120
Wis. 52, 97 N. W. 494. 1905, Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054.
So also for the real object to be secured by a mortgage: 1905, Campbell v. Perth Amboy
S. & E. Co., 70 N. J. Eq. 40, 62 Atl. 319.
[Note 2, par. 1 ; add:]
1913, Williams v. Chicago R. I. & P. R. Co., — Ark. — , 158 S. W. 967 (release and contract
by injured employee).
1909, Louisville & N. R. Co. v. Willbanks, 133 G^. 15, 65 S. E. 86 (deed of right of way, with
a contract as to crossings).
1907, Farquhar, v. Farquhar, 194 Mass. 400, 80 N. E. 654.
1908, Kramer v. Gardner, 104 Minn. 370, 116 N. W. 925 (recital forming part of a contract
to assume a mortgage).
1909, Southard s. Arkansas Valley & W. R. Co., 24 Okl. 408, 103 Pac. 750 (contract to pay
in consideration of a railroad location; good opinion by Williams, J.).
1910, Spokane Canal Co. v. Coffman, 61 Wash. 357, 112 Pac. 383 (contract for land).
1904, Butt V. Smith, 121 Wis. 566, 99 N. W. 328 (alleged overpayment on a deed describing
the land ; an extrinsic agreement as to its area and price per acre, not given effect).
1904, Stickney v. Hughes, 12 Wyo. 397, 75 Pac. 945.
[Note 2 ; add, at the end of par. 2 :]
Distinguish also cases (n which the recital of consideration is said to be not disputable for
the purpose of invalidating the deed; this seems often to mean merely that the deed or con-
621
u-
§2433 PAROL EVIDENCE RULES
[Note 2 — continued]
tract is valid regardless of consideration : 1865, Illinois C. Ins. Co. v. Wolf, 37 III. 354 (in-
surance policy^. 1906, Stannard v. Aurora E. & C. R. Co., 220 111. 469, 77 N. E. 254.
For the peculiar application of the rule that as between solicitor and client the deed must
show on its face the true consideration, see the following : 1913, Duffy v. Mathieson, P. E. I.,
13 D. L. R. 587.
§ 2434. Warranty in a Sale ; Insurance Warranties.
[Note 1, par. 1; add:]
1905, Gardiner v. McDonough, 147 Cal. 313, 81 Pac. 964 (sale of beans, etc., by memoran-
dum; oral agreement to equal sample, excluded ; Shaw, J., diss. ; prior cases considered).
1904, Telluride P. T. Co. v. Crane Co., 208 111. 218, 70 N. E. 319 (warranty of pipe, excluded).
1911, Grubb v. Milan, 249 111. 456, 94 N. E. 927 (contract for sale of restaurant).
1904, Neale v. American E. V. Co., 186 Mass. 303, 71 N. E. 566 (excluded). 1906, SchoU v.
Killorin, 190 Mass. 493, 77 N. E. 382 (oral warranty as to a steam roller, excluded).
1907, Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682 (quality of goods).
1905, Gerhardt v. Tucker, 187 Mo. 46, 85 S. W. 552.
[Note 2; add:]
1906, Cooper v. Payne, 186 N. Y. 334, 78 N. E. 1076 (sale of a knitting machine ; foregoing
cases followed ; a passage from Thomas v. Scutt, post, § 2437, n. 3, cited as "a compendium
of the law applicable to this case").
[Note 4; add:]
1906, Deming Inv. Co. v. Shawnee F. Ins. Co., 16 Okl. 1, 83 Pac. 918.
This troublesome question of theory and policy is usually raised by the erroneous tran-
scription, by the insurer's agent, of the insured's representations as to material facts, the in-
sured then ignorantly signing the transcript : 1906, Lyon v. United Moderns, 148 Cal. 470,
83 Pac. 804 (collecting cases).
1906, Prudential Ins. Co. v. Hummer, 36 Colo. 208, 84 Pac. 61.
1904, Medley v. German Alliance Ins. Co., 55 W. Va., 47 S. E. 101 ; and other cases cited,
ante, § 2415, n. 2, § 2416, n. 6, § 2418, n. 2.
§ 2435. Agreements not to Sue, or not to Enforce, etc.
[Note 3; add:]
1906, Jackson v. Drake, 37 Can. Sup. 315 (account stated settling a balance; oral agree-
ment that the amount was not to be deemed due unless and until certain moneys were
collected, held ineffective).
1914, Hurley v. Young Men's Christian Ass'n, — Ariz. — . 140 Pac. 816 (subscription
contract).
1909, Heitmann v. Commercial Bank, 6 Ga. App. 584, 65 S. E. 590 (thirteen persons indorsed
a note, and ten of them had indorsed successive renewal notes ; a final renewal note was
signed by nine of the ten, with a letter to the bank asking for the return of the old notes ;
held that the understanding that the tenth person should indorse before the final note be-
came valid was admissible ; Hill, C. J., diss., on the ground tjiat the letter signed by nine
was a final act and that the alleged understanding was virtually a condition subsequent
in contradiction of it).
1914, Little V. Liggett, — Kan. — , 140 Pac. 838 (application for loan).
1908, Basnight v. Southern Jobbing Co., 148 N. C. 350, 62 S. E. 420 (stock subscription).
1912, Garrison v. Case Threshing M. Co., 159 N. C. 285, 74 S. E. 821 (sale and mortgage of
machinery). 1913, Lytton Mfg. Co. v. House Mfg. Ci., 161 N. C. 430, 77 S. E. 233 (sale
of kiln apparatus).
622
B. INTEGRATION OF A LEGAL ACT § 2438
§ 2436. Agreements of Counter-Claim, Renewal, etc.
[Note 1; aM:]
1909, Woodson v. Beck, 151 N. C. 144, 65 S. E. 761 (duebill accompanying an insurance
policy ; agreement as to surrender of old policy instead of payment of cash, excluded).
§ 2437. Agreement to hold a Deed Absolute as Security ; Agreement to hold
in Trust.
[Note 1; add:]
1906, Wadleigh v. Phelps, 149 Cal. 627, 87 Pac. 93.
1906, Gibbons v. Jos. Gibbons, C. M. & M. Co., 37 Colo. 96, 86 Pac. 94.
1904, Gannon v. Moles, 209 111. 180, 70 N. E. 689. 1904, Merriman v. Schmitt, 211 111. 263,
71 N. E. 986.
1907, Krebs v. Lauser, 133 la. 241, 110 N. W. 443.
1905, Stitt !). Rat Portage L. Co., 98 Minn. 52, 104 N. W. 561.
1906, Gardner ii. Welch, 21 S. D. 151, 110 N. W. 110 (interesting example).
1913, Hoover v. Bouffleur,'74 Wash. 382, 133 Pac. 602.
1904, Hursey v. Hursey, 56 W. Va. 148, 49 S. E. 367.
Compare the alleged rule that such an agreement is not suflSciently proved by the gran-
tee's uncorroborated admissions (ante, § 2054).
[Note 2; add:]
1913, Cafson v. National Life Ins. Co. 161 N. C. 441, 77 S. E. 353 (absolute assignment
of insurance policy).
But the Kentucky Court now accepts the orthodox doctrine, expressly overruling contrary
decisions : 1909, Hobbs v. Rowland, 136 Ky. 197, 123 S. W. 1185.
[Note 3; add:]
1912, Duffey v. Scientific A. C. Deptmt., 30 Okl. 742, 120 Pac. 1088 (book-order).
[Note 8; add;]
1909, Ah Hoy v. Raymond, 19 Haw. 568 (chattel mortgage).
[Note 12; add:]
1904, Ostenson v. Severson, 126 la. 197, 101 N. W. 789. ■
The subject has been exhaustively examined in the following articles : Professor J. B. Ames,
"Constructive Trusts based upon the Breach of an Express Oral Trust of Land" (Harvard
Law Review, XX, 549 ; 1907).
Professor George P. Costigan, Jr., "Trusts based on Oral Promises," etc. (Michigan Law
Review, XII, 423, 535<; 1914).
Professor H. F. Stone, " Resulting Trusts and the Statute of Frauds " (Columbia Law
Review, VL 326; 1906).
§ 2438. Agreement to hold as Surety or Agent only.
[Note 3; add:]
1905, Russell v. Broadus C. Mills, — Ala. — , 39 So. 712.
1905, Raleigh & G. R. Co. v. Pullman Co., 122 Ga. 700, 50 S. E. 1008.
1904, Reed v. Fleming, 209 111. 390, 70 N. E. 667.
1914, Brooks Co. v. Wilson, — Mass. — , 105 N. E. 607 ("ordered by").
1904, Western W. S. Co. v. McMillen, 71 Nebr. 686, 99 N. W. 512.
1911, Wiers v. Treese, 27 Okl. 774, 117 Pac. 182.
623
§2438 PAROL EVIDENCE RULES
[Note 5; add:]
Compare the following : 1905, Usher v. Daniels, 73 N. H. 206, 60 Atl. 746 (citing cases).
[NoUe, 1. 2; add:]
1914, Arizona L. Ins. Co. v. Lindell, — Ariz. — , 140 Pac. 60.
1903, Curran v. Holland, 141 Cal. 437, 75 Pac. 46.
1906, Buffington v. McNally, 192 Mass. 198, 78 N. E. 309.
1911, Davidson v. Hurtz, 116 Minn. 280, 133 N. W. 862.
1906, Schriner v. Dickinson, 20 S. D. 433, 107 N. W. 536.
§2439. Fraud.
[Note 1; add:]
1910, Delaney v. Jackson, 95 Ark. 131, 128 S. W. 859 (lease).
1904, McCrary v. Pritchard, 119 Ga. 876, 47 S. E. 341.
1904, Wilson, Close & Co. v. Pritchett, 99 Md. 583, 58 Atl. 360.
1905, Patten-W. D. Co. v. Planters' M. Co., 86 Miss. 423, 38 So. 209 (sale-contract).
1910, Adams v. Gillig, 199 N. Y. 314, 92 N. E. 670 (deed obtained by fraudulent represen-
tations of an intention to build dwellings on the land, the actual intention being to build an
automobile garage).
1909, Baker v. Berry Hill M. S. Co., 109 Va. 776, 65 S. E. 656.
§ 2440. Trade Usage and Custom.
[Note 1, par. 1; add:]
1913, Smith v. Bloom, — la. — , 141 N. W. 32 (stockyards methods).
1913, Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579 (custom of landlord and tenant
in Arkansas City, not applied to a party living in another city).
1906, Garfield v. Peerless M. C. Co., 189 Mass. 395, 75 N. E. 695 (commission on a sale of
an automobile; trade usage admitted, on the facts)., 1906, Shute v. Bills, 191 Mass. 433,
78 N. E. 96 (lease ; usage as to repairs and control of gutters, etc.). 1910, Barrie v. Quinby,
206 Mass. 259, 92 N. E. 451 (usage in the book-trade as to an interval between expensive
and cheap editions of the same book).
1904, Blalock v. Clark, 137 N. C. 140, 49 S. E. 88 (custom as to the mode of payment for
cotton).
1904, Portland F. M. Co. v. British & F. M. Ins. Co., 130 Fed. 860, 65 C. C. A. 344 (usage
as to collection of freight charges from the person named in the bill of lading as the one to
be notified, excluded).
§ 2441. Novation, Alteration, and Waiver, etc.
[Note 1; add:]
1907, Roquemore v. Vulcan I. W. Co., 151 Ala. 643, 44 So. 557 (lease of a shovel).
1909, O'Laughlin v. Poll, 82 Conn., 427, 74 Atl. 763 (building contract, with agreement for
extra work).
1913, Elyea-Austell Co. v. Jackson Garage, 13 Ga. App. 182, 79 S. E. 38 (waiver of acondition).
1904, Strahl v. Western G. Co., — Nebr. — , 98 N. W. 1043 (services).
1904, Putnam F. & M. Co. v. Canfield, 25 R. I. 548, 56 Atl. 1033 (contract for steam-heating).
§ 2442. Miscellaneous Applications of the Rule, etc.
[Note 1; add:]
1904, Guiou V. Thibeau, 36 N. Sc. 542 (agreement to maintain for life). 1904 Meisner v.
Meisner, 37 N. Sc. 23 (lease of a farm, and agreement as to maintenance, etc.).
624
B. INTEGRATION OF A LEGAL ACT § 2444
[Note 1 — continued]
1905, Pearson v. Dancer, 144 Ala. 427, 39 So. 474 (mortgage notes). 1905, Weir v. Long,
145 Ala. 328, 39 So. 974 (contract of sale of goods).
1906, Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468 (whether an agreement was a lease or
a sale of land). 1910, Bradley Gin Co. v. Means M. Co., 94 Ark. 130, 126 S. W. 81 (ma-
chinery sale; promise to furnish a man to erect it, excluded).
1904, Hartford v. Maslen, — Conn. — , 57 Atl. 740 (whether land was tendered to the State
in lieu of other land; the understanding of citizens at a mass-meeting, excluded). 1906,
Brosty v. Thompson, 79 Conn. 133, 64 Atl. 1 (sale of a farm and of personalty used thereon).
1904, Davis v. Fidelity Fire Ins. Co., 208 111. 375, 70 N. E. 359 (appointment of an agent).
1904, Schneider v. Sulzer, 212 111. 87, 72 N. E. 19 (oral agreement to dedicate for a street
the land adjacent to land contracted for sale, excluded). 1904, Osgood v. Skinner, 211 111.
229, 71 N. E. 869 (contract to repurchase stock).
1904, Ingram v. Dailey, 123 la. 188, 98 N. W. 627 (labor and rent). 1904, Sutton v. Weber,
127 la. 361, 101 N. W. 775 (sale of goods by an agent, with condition of return).
1905, Davies v. Bierce, 114 La. 663, 38 So. 488 (contract for stock andnotes).
1911, Tainter v. Wentworth, 107 Me. 439, 78 Atl. 572 (warranty of a piano's quality).
1904, Hightower v. Henry, 85 Miss. 476, 37 So. 745 (contract of rent ; oral contract to build
a fence, excluded).
1910, Cooper v. Kennedy, 86 Nebr. 119, 124 N. W. 1131 (in a deed of realty, the reservation
of growing crops may be made by oral agreement).
1904, Hallenbeck v. Chapman, 71 N. J. L. 477, 68 Atl. 1096 (repairs). 1905, Grueber Eng.
Co. V. Waldron, 71 N. J. L. 597, 60 Atl. 386 (building contract). 1907, Loxley v. Stude-
backer, 75 N. J. L. 599, 68 Atl. 98 (broker's contract).
1909, Lossing v. Cushman, 195 N. Y. 386, 88 N. E. 649 (building plans provided for a "cel-
lar" ; a prior agreement that the cellar need be only 8 X 12, excluded). 1909, Lese v. Lam-
precht, 196 N. Y. 32, 89 N. E. 365 (contract to convey ; oral agreement making an exception
to the covenant against incumbrances, etc., excluded on the facts). 1912, Studwell v. Bush
Co., 206 N. Y. 416, 100 N. E. 129 (services in a warehousing business).
1905, Orion K. MiUs v. U. S. F. &. G. Co., 137 N. C. 565, 50 S. E. 304 (surety bond).
1906, Alsterberg v. Bennett, 14 N. D. 596, 106 N. W. 49 (oral covenant with quitclaim deed).
1913, Mandler v. Starks, 35 Okl. 809, 131 Pac. 912 (covenant against incumbrances).
1905, Bowen v. Mutual Life Ins. Co., 20 S. D. 103, 104 N. W. 1040 (insurance premium ,
receipt).
1913, Cressey v. International Harvester Co., 9th C. C. A., 206 Fed. 29 (contract as collect-
ing agent ; the employer's obligation, stated as the consideration for the agent's obligation,
was to pay a monthly salary of $125 and expenses ; held that an oral contemporary promise
of theemployer to pay a bonus or commission additionally was not enforceable ; citing § 2430
above).
1913, Vance v. Heath, — Utah — , 129 Pac. 365 (construction and lease contract).
1906, Hubenthal v. Spokane & I. R. Co., 43 Wash. 677, 86 Pac. 955 (reservation of a right
of way). 1910, Tobin v. McArthur, 56 Wash. 523, 106 Pac. 180 (excavation contract).
1904, Fosha v. Prosser, 120 Wis. 336, 97 N. W. 924 (sale of a business).
§ 2444. Negotiable Instruments; Agreements affecting the Express Terms.
[Note 1 ; add :]
Contra: 1906, Evans v. Freeman, 142 N. C. 61, 54 S. E. 847 (note for $50, given for a ma-
chine ; agreement that it should be paid out of proceeds of sales, admitted).
[Note 6, par. 1; add:]
Accord: 1904, McNeil v. CuUen, 37 N. Sc. 18 (demand note; agreement not to demand
payment unless on the death of children, etc., excluded).
1906, Hill V. Hall, 191 Mass. 253, 77 N. E. 831 (pecuUar facts).
625
§2444 PAROL EVIDENCE RULES
[Note 6 — continued]
Contra: 1908, Commonwealth Trust Co. v. Coveney, 200 Mass. 379, 86 N. E. 895 (agree-
ment to renew repeatedly until repaid by certain profits). 1905, O'Brien v. Paterson B. & M.
Co., 69 N. J. Eq. 117, 61 Atl. 437 (note given on the agreement that it should not be en-
forced so long as the maker bought beer of the payee ; agreement given effect, on the theory-
that the whole transaction was virtually a mortgage).
[Note 7; add:]
1912, Vineberg v. Jones, Que. C. R., 8 D. L. R. 513 (agreement to pay only on condition,
not enforced).
1905, Western Carolina B ank v. Moore, 138 N. C. 529, 51 S. E. 79 (note given for bank-stock, ''
etc. ; agreement that the maker should not be liable, excluded).
1904, Schmidt v. Schmidt's Estate, 123 Wis. 295, 101 N. W. 678 (father's action on the son's
promissory note ; agreement to consider it only as evidence of an advancement, excluded,
under Stats. 1898, § 3959, requiring advancements to be in writing in some form).
{Note 8; add:]
1909, Conrad v. Clarke, 106 Minn. 430, 119 N. W. 214.
1905, People's Nat'l Bank v. Schepflin, 73 N. J. L. 29, 62 Atl. 333. 1905, Morgan «. Thomp-
son, 72 N. J. L. 244, 62 Atl. 410.
[Note 10; add, under Accord :] —
1905, Trammell v. Swift, F. Wks., 121 Ga. 778, 49 S. E. 739.
1906, Kaufman v. Barbour, 98 Minn. 158, 107 N. W. 1128.
1912, First National B'k v. Burney, 90 Nebr. 432, 133 N. W. 647, 91 Nebr. 269, 136 N. W.
37.
[Note 10 ; add, at the end :]
So, too, the question whether an agreement between maker and indorser, that the former
shall be surety only, is enforceable, seems to rest on the same considerations ; compare the
following : 1813, Fentum, v. Pocock, 5 Taunt. 192; 1857, Pooley v. Harradine, 7 E. & B.
431 ; 1905, Jennings ». Moore, 189 Mass. 197, 75 N. E. 214.
Distinguish the following question : 1906, City Deposit Bank v. Green, 130 la. 384,
106 N. W. 942 (joint and several note; agreement for several liability only, excluded).
§ 2445. Same : Agreements aflecting the Implied Terms.
[Note 1; add:]
1913, Berenson v. Conant, 214 Mass. 127, 101 N. E. 60 (but here held valid for a one
taking with notice ; Neg. Instr. Act, § 138 applied).
[Text, p. 3451, end of par. (4) :]
omit : " and this is generally conceded " ; and insert : " but Courts differ
upon this point."
[Note&; add:]
1905, Harnett v. Holdredge, 5 Nebr. 114, 97 N. W. 443; 73 Nebr. 570, 103 N. W. 277.
1908, Haddock B. & Co. v. Haddock, 192 N. Y. 499, 85 N. E. 682 (under the Negotiable
Instruments Code).
Contra: 1909, Hackley Nat'l Bank v. Barry, 139 Wis. 96, 120 N. W. 275.
An indorsement of payment is subject to the usual rule for receipts (o?ite, § 2432), and
may therefore be contradicted : 1905, McCaffrey v. Burkhardt, 97 Minn. 1, 105 N. W.
971.
626
B. INTEGRATION OF A LEGAL ACT §2450
§ 2446. Rule binding upon the Parties to the Document only.
[Note 3; add:]
1906, State v. Davison, — N. H. — ,64 Atl. 761 (embezzlement of corporate funds ; the
intent of the defendant, expressed in their oral statements, allowed to be shown, in spite of
a written bill of sale).
[Note 5 ; add :]
1905, Wilson v. State, — Ala. — , 39 So. 776 (charge of removing corn with intent to defraud
creditors, viz. one Mrs. J. having a claim for-advances; "the written contract determines
the relation that existed between Mrs. J. and the defendant," and proof by parol was ex-
cluded).
1907, Good & Co. V. Central C. & C. Co., 7 Ind. Terr. 268, 104 S. W. 613 (railroad con-
tractor).
1912, Rampton v. Dobson, 156 la. 316, 136 N. W. 682 (assessment by the county ; whether
a contract for the sale of land was assessable as a credit ; the parties' understanding that it
was only an option, admitted ; Evans, J., diss., places the case on the present ground).
1911, Levine v. Mitchell & S. Co., 144 Ky. 380, 138 S. W. 261 (pledge of diamonds). 1914,
Williams v. National Cash Register Co., 157 Ky. 836, 164 S. W. 112 (liabiUty of principal
for agent's torts). '
1904, Wilson v. Mulloney, 185 Mass. 430, 70 N. E. 448 (assignment of a mortgage,
etc.).
1905, Flynn v. Butler, 189 Mass. 377, 75 N. E. 730 (joint tortfeasors ; a release of claims to
one tortfeasor, held not variable by parol evidence). >
1903, First Nat'l Bank ii. Tolerton, 5 Nebr. 43, 97 N. W. 248 (chattel mortgage).
1906, Shreve v. Crosby, 72 N. J. L. 491, 63 Atl. 333 (stock transactions).
1909, Brown B. Wisner, 51 Wash. 509, 99 Pac. 581 (action by a broker for commissions on a
sale; the rule held mot to apply to the contract between defendant and vendee).
[Text, p. 3455, after § 2447 ; add a new § 2448 :]
§ 2448. Loss of the Instrument ; Oral Transaction is still Immaterial. It
follows, from the theory of the present rule (ante, § 2425), that if the instru-
ment is lost, it is nevertheless the factum probandum, being the embodiment
of the transaction. The superseded oral transactions do not therefore become
the object of proof .^ Nevertheless, so far as the parties' intentions, or other
' 1904, Capell, v. Fagan, 29 Mont. 507, 77 Pac. 55 (misusing the word "evidence") ;
and cases cited aivte, § 2427, n. 11.
conduct, would ordinarily be evidence of an act done, so here such circum-
stances may be evidentially offered to show by probability the contents of
the lost instrument as consummated.^
'Ante, §§ 1735, 1737; § 112; § 392, n. 1, n. 10; § 273, n. 1; § 377, n. 4, 5.
Contra: 1891, Nicholson v. Tarpey, 89 Cal. 617, 26 Pac. 1101 (deed). 1899, Nicholson v.
Tarpey, 124 Cal. 442, 57 Pac. 457 (similar).
'The opinion in Tayloe v. Riggs, 1 Pet. 591, 599 (1828), sometimes cited contra, is based
in reality upon the principle of § 2105, ante.
§ 2450. Integration required by Law ; (l) Judicial Records.
[Note 1, par. 1; add:]
1911, Desha's Adm'r's v. Harrison Co., 141 Ky. 692, 133 S. W. 545 (county fiscal court's
record of claim presented and allowed).
627
§2450 PAROL EVIDENCE RULES
[Note 2; add:]
1908, Graden v. Mais, 77 Kan. 702, 95 Pac. 412 (administrator's deed ; oral notice of hearing,
not valid).
[Note 4 ; add :]
1905, Holford «. James, 136 Fed. 553, C. C. A. (lost pleadings ; parol evidence received).
[Note 5; add:]
1906, Boonville Nat'l Bank v. Blakey, 166 Ind. 427, 76 N. E. 529.
1905, Hofacre v. Monticello, 128 la. 239, 103 N. W. 488.
1907, Thompson v. Great Western Ace. Ass'n, 136 la. 557, 114 N. W. 31 (court's correction
of erroneous entry by clerk). 1907, Puckett v. Gunther, 137 la. 647, 114 N. W. 34 (prior
case distinguished). 1913, Hamill v. Schlitz Brewing Co., — la. — , 143 N. W. 99 (pro-
cedure for making corrections).
1910, Ralls V. Sharp's Adm'r, 140 Ky. 744, 131 S. W. 998 {nunc pro tunc entry after term
time).
1904, Fort Worth & D. C. R. Co. v. Roberts, 98 Tex. 42, 81 S. W. 25 (entry nunc pro tunc
where no minute was made).
1908, Guinn v. Warbutton, 64 W. Va. 76, 60 S. E. 1100 (whether prior notice is necessary
for a correction made during the same term).
[Note 7, par. 1 ; add :]
1910, Yokell V. Elder, 20 N. D. 142, 127 N. W. 514 (following Baxter ». Pritchard, supra),
1905, Gibson v. Holmes, 78 Vt. 110, 62 Atl. ll (certified copy of docket entries in a Massa-
chusetts court, excluded, "as those entries were no record, but only minutes from which to
make a record").
[Note 8, par. 1 ; add:]
1909, Puckett v. Gunther, 142 la. 35, 120 N. W. 123 (the spreading of the record by the
clerk at a later time is not a judicial act and may be made on Sunday ; the conflicting doc-
trines discussed ; interesting and valuable opinion by Evans, C. J.). 1909, Burke v. Burke,
142 la. 206, 119 N. W. 129 (judgment and minute made in term time; formal entry pre-
pared in vacation ; the judgment held to have been rendered in term time). 1909, Owens
V. National Hatchet Co., — la. — , 121 N. W. 1076 (minutes unspread may suflSce for an
appeal).
[Note 12; add:]
1911, Seattle v. Northern Pacific R. Co. 63 Wash. 167, 114 Pac. 1041 (whether a hability
was covered in a former judgment; the trial Court's instructions excluded).
[Note 14; add:]
1905, Baker Co. v. Huntington, 46 Or. 275, 79 Pac. 187 (acceptance of a sheriff's bond may
be shown orally, if no court record exists).
§ 2451. Same : (2) Corporate Acts and Records, etc.
[Note 3; add:]
1904, Chippewa Bridge Co. v. Durand, 122 Wis. 85, 99 N. W. 603 (city council).
[Note 4:; add:]
1905, Denver v. Spencer, 34 Colo. 270, 82 Pac. 590 (park commission ; authorities collected
in an opinion by Campbell, J.).
1910, Alton Mfg. Co. v. Garrett Biblical Institute, 243 III. 298, 90 N. E, 704 (board of
trustees).
628
B. INTEGRATION OP A LEGAL ACT § 2453
[Note 4 — contintied]
1910, Cook V. Manasquan, 80 N. J. L. 206, 76 Atl. 310.
N. Y. St. 1909, c. 66, p. 22, Feb. 17 (adding § 9316 to the C. C. P; recital in a record of a
meeting etc. ; that the meeting was notified, held, or adjourned, to be evidence).
1904, Gove v. Tacoma, 34 Wash. 434, 76 Pac. 73 (county board).
[Note 5; add:]
1909, Just !).' Idaho C. & I. Co., 16 Ida. 639, 102 Pac. 381 (not conclusive against minority
stockholders).
1905, State v. Farrier, 114 La. 579, 38 So. 460 (lodge of Masons).
1909, Derosia v. Loree, 158 Mich. 64, 122 N. W. 357 (municipal corporation records).
1905, Norwich Ins. Co. v. Oregon R. Co., 46 Or. 123, 78 Pac. 1025 (master mechanics' as-
sociation).
Contra: 1906, Rose v. Indept. C. Kadisho, 215 Pa. 69, 64 Atl. 401.
For the admissibility of such records in general, see ante, §§ 1074, 1661.
§ 2452. trnder Statutes ; Wills, Ballots, Insurance Policies.
[Note 3; add:]
1896, White's Goods, L. R. 1 Ire. 269 (words added below the signature).
1905, O'CarroU v. Hastings, L. R. 2 Ire. 612.
Lewis V. Lewis, [1907] P. 1 ; University College of North Wales v. Taylor, [1908] P. 140.
1906, Whitney v. Hanington, 36 Colo. 407, 85 Pac. 84.
1904, Bryan's Appeal, 77 Conn. 240, 58 Atl. 748 (doctrine of "incorporation by reference"
applied).
1907, Hatheways. Smith, 79 Conn. 506, 65 Atl. 1058 (able opinion by Hamersley, J.; dealing
with the distinction between a separate unattested and therefore void document incorpo-
rated by reference and a separate document aiding to interpret a description).
1907, Palmer v. Owen, 229 111. 115, 82 N. E. 275.
1907, Schillinger v. Bawek, 135 la. 131, 112 N. W. 210.
1909, Drysdale's Succession, 124 La. 256, 50 So. 30.
1909, Bresler's Estate, 155 Mich. 567, 119 N. W. 1104 (doctrine of incorporation by refer-
ence, applied).
1913, Watson v. Hinson, 162 N. C. 72, 77 S. E. 1089.
[Note 6; add:]
Pa. St. 1881, May 11, Pub. L. 20 (similar, and including by-laws of the insurer).
[Note 7; add:]
1904, Hunziker v. Supreme Lodge, 117 Ky. 418, 78 S. W. 201. 1910, Southern States M. L.
Ins. Co. V. Herlihy, 138 Ky. 359, 128 S. W. 91.
1906, Holden v. Prudential L. Ins. Co., 19 Mass. 153, 77 N. E. 309 (where the policy does
not refer to the application, the latter may be used to show fraudulent misrepresentations ;
this seems unsound). 1906, Paquette v. Prudential Ins. Co., 193 Mass. 215, 79 N. E. 250.
1907, Langdeau v. John Hancock M. L. Ins. Co., 194 Mass. 56, 80 N. E. 452.
1913, Continental Casualty Co. v. Owen, 38 Okl. 107, 131 Pac. 1084.
1905, Custer v. Fidelity M. A. Ass'n, 211 Pa. 257, 60 Atl. 776 (citing prior cases).
1904, Manhattan L. Ins. Co. v. Albro, 127 Fed. 281, 62 C. C. A. 213 (Massachusetts statute
construed).
§ 2453. Conclusive Certificates, distinguished.
[Text, p. 3463, last line; add a note 1 :]
1 Compare Mr. Gulson's analysis, in his treatise cited ante, § 1349.
629
■^2454 , PAROL EVIDENCE RULES
§ 2454. C. Writing as a Formality ; Statute of Frauds.
INote 16; add:]
1904, Halsell v. Renfrew, 14 Okl. 674, 78 Pac. 118.
§ 2455. Same : Discharge and Alteration of Specialties, etc.
[Note 6; add:],
1906, Beld ». Darst, 146 Mich. 143, 109 N. W. 275 (per Hooker, J., diss. ; the majority re-
fusing to consider the point on appeal).
[Note 7; add:]
1904, Vezey v. Rashleigh, 1 Ch. 634 (distinguishing between an alteration and a novation).
1904, Putnam F. & M. Co. d. Canfield, 25 R. I. 548, 56 Atl. 1033.
§2459. D. Interpretation of Legal Acts; "Meaning" and "intention"
distinguished.
[Text, p. 3472, 1. 7 of the §, after "terms " ; add a new note a:]
This distinction has been approved in the following opinion :
1909, Lancaster & J. E. L. Co. v. Jones, 75 N. H. 172, 71 Atl. 871.
§ 2461. Standard of Interpretation; General Principle.
[Note 1; add:]
Compare also the learned and enlightening article by Professor Roscoe Pound, "Spurious
Interpretation," Columbia Law Review, VII, 379 (1907).
§ 2462. Rule against Disturbing a Clear Meaning.
[Note 8; add:]
The state of opinion at this epoch is well illustrated in the opinions on the rule in Shelley's
Case, in the great decision of Perrin v. Blake, in 1770 (4 Burr. 2579). Even the rational
Blackstone stands by the then orthodox principle, while Mansfield, with an illumined insight
a century beyond his time, as usual, is found advancing the modern theory.
[Note 17; add:]
1902, Marshall, J., in Utter v. Sidman, 170 Mo. 284, 294, 70 S. W. 705 (good opinion).
[Text, p. 3483, 1. 19, after the quotation ; add a note 18 :]
^ And now see the powerful opinion of Whitfield, C. J., in Ball v. Phelan, 94 Miss. 293,
49 So. 956 (1909).
§ 2463. Same : Application of the Rule to Wills, Deeds, etc.
[NoteS; add:]
England : 1906, Re Corsellis, 2 Ch. 316 (bequest to "all my nephews and nieces then living,"
applied to children of a deceased illegitimate sister ; following Re Jodrell and Hill v. Crook).
1906, Re Glassington, 2 Ch. 305 (devise of "real estate" ; to apply the term to a certain
freehold interest which was in law personalty, the testatrix' instructions stating that her only
real estate consisted in this freehold interest were not held admissible, but on the facts the
term "real estate" was nevertheless applied to the personalty interest in the freehold).
1906, Re Loveland, P. 542, 1 Ch. 542 (the testator formally married his niece W. in Scotland,
630
D. INTERPRETATION OF A LEGAL ACT § 2463
[Note 3 — continued]
but by Scotch law the marriage was invalid ; after the marriage-ceremony he executed a
will making a residuary devise to W. and to "all her children Uving at my decease, etc." ;
there was one such child ; Swinfen Eady, J. : "I am satisfied, as matter of construction, that
the word 'children' is used by the testator as including illegitimate children" ; by this ruling
it would seem that the unjust doctrine of Dorin v. Dorin was abandoned).
Estate of Vines, [1910] p. 147 (will conditional on dying before a certain time ; if the words
are ambiguous, the deceased's declarations are receivable).
In re Pearce, Alliance Ass. Co. v. Pearce, [1913] 2 Ch. 675 (bequest to "any the children or
child of my said bro.ther W. W. F." ; W. F. had six children by a reputed but not lawful
wife H., who died in 1900 ; by a lawful wife R. married in 1904 he had two more children ;
the six children by H. had been publicly received as legitimate, and were all known to tes-
tator, who liked some of them ; held that only the two legitimate ones could take ; another
perverse remnant of medievalism ; Lord Bowen's great judgment in Re Jodrell is not even
cited by counsel or, court).
Ireland : 1902, Flood v. Flood,L. R. 1 Ire. 638 (bequest of ' ' all the preference stock or shares
in the D. W. & W. R. Co. of which I may at the time of my death be possessed" ; thei tes-
tatrix never had any such.shares; stock in the D. & K. R. Co. held to be signified).
1908, M'Hugh V. IM'Hugh, 1 Ire. 155 (bequest " to my nieces and nephews " of shares of stock,
to be put "in their father's and mother's name until they are 21 years old" ; the testatrix
had many nephews and nieces, the youngest of whom was at the date of the will 26 years
old ; the testatrix also had one married son who with his five children, aged 5, 4, 3, 2, and 1,
lived with the testatrix ; held, the bequest was void for uncertainty ; this decision is ,not
only as perversely wrong as has been seen for many a day, but shows in the opinion an unfa-
miliarity with the authorities which is disconcerting),
X 1908, In re Wrenn, 2 Ire. 370 (bequest to "my mother" ; the testator's mother was long
since deceased, but there survived a sister M., and a son of the sister, also children of a
deceased sister and brother ; the will was drafted by the sister M.'s son ; the testator told
him to make the bequest to "your mother," and the son inadvertently wrote "my mother" ;
held, that the sister M. should take ; this is as extreme a case as is on record ; but it is not-
able that the Court took the sensible way of striking out for probate the word "my," on
the principle of § 2421, ante, 21 ; and then of interpreting the word "mother" ; note also that
this ruUng restores the credit of this court as blemished by M'Hugh v. M'Hugh, supra).
Canada: 1908, Marks v. Marks, 40 Can. Sup. 210 (bequest in 1904 to "my wife" ; the tes-
tator had married A. in 1873, left her in 1878, and married S. in 1902 and was living with
her; held that "iny wife" meant the woman so treated by him, and not necessarily the
legal one; Maclennan, J., diss.).
[Note 5; add:]
1912, Coon V. McNelly, 254 111. 39, 98 N. E. 218 ("my grandchildren" applied by the tes-
tator's circumstances and usage to mean grandchildren of the testator's wife by a former
husband). i
1909, Ball V. Phelan, 94 Miss. 293, 49 So. 956 (implied limitation of a remainder in fee to
children of a life estate).
Contra: 1911, Suman v. Harvey, 114 Md. 241, 79 Atl. 197 ("to my heirs-at-law and next of
kin" ; the testatrix left next of kin four first cousins, but a now deceased first cousin left
surviving a son ; held that expressions of intention to provide for and to include the de-
ceased cousin and her son in the will were inadmissible ; the opinion does not discuss the
real diflSculties involved).
[Note 6; add:]
1900, Northeastern R. Co. v. Hastings, App. Cas. 260 (railway lease ; Halsbury, L. C. :
"No amount of acting by the parties can alter or qualify words which are plain and un-
ambiguous").
631
§2463 PAROL EVIDENCE RULES
[Note 6 — continued]
1904, Union Selling Co. v. Jones, 128 Fed. 672 (contract for binder twine, etc. ; prior nego-
tiations excluded ; illustrating the diflBculty of drawing the line between this principle and
thatof §2465,n. 5,jiosi).
[Note 8; add:]
1905, Gardiner v. McDonough, 147 Cal. 313, 81 Pac. 964 (sale of "peas" and "pinks,"
interpreted by usage to mean "white beans" and "pink beans," and "per 100" to mean
''per 100 pounds").
1905, Rochester German Ins. Co. v. Peaslee G. Co., 120 Ky. 752, 87 S. W. 1116 ("noon"
may be shown by custom to signify standard, not solar time).
1904, Barker v. Citizens' M. F. Ins. Co., 136 Mich. 626, 99 N. W. 866 ("winter season" in
the logging season).
1912, Turlock F. J. Co. v. Pacific & P. S. B.Co., 71 Wash. 128, 127 Pac. 842 ("fermentation"
in a grapejuice contract).
[Noted; add:]
Contra: 1908, Birely v. Dodson, 107 Md. 229, 68 Atl. 488. 1904, Vogt v. Shienebeck, —
Mich. — , 100 N. W. 820 (the meaning of "f. o. b." "is so plain that it was not permissible
to explain it by custom or otherwise").
[Note 11; add:]
1904, Norman P. S. Co. v. Ford, 77 Conn. 461, 59 Atl. 499 (parties' private meaning for the
words "on contract" in certain books of entry, admitted).
§ 2464. Usage of Trade or Locality, etc.
[Note 2; add:]
1904, Tower Co. «. Southern Pac. Co., 184 Mass. 472, 69 N. E. 348 (a usage to class oil-
clothing as "inflammable goods" for stowage purposes, admitted; "when a custom is
general as applied to a particular transaction," actual knowledge by the other party need
not be proved; yet the presumption is "not one of law for the Coiu-t").
1908, Continental Hose Co. v. Fargo, 17 N. D. 5, 114 N. W. 834 ("paid firemen" ; the burden
is on the party asserting a technical meaning).
[NoU3; add:]
1891, Dashwood v. Magniac, 3 Ch. 306, 354, 366 (a will empowering trustees to fell timber ;
usage admitted to interpret).
1904, Soper v. Tyler, 77 Conn. 104, 58 Atl. 699 (contract with a Boston grain dealer is
subject to the Boston usage in the grain trade).
1906, People v. Wiemers, 225 111. 17, 80 N. E. 45 ("crushed cobble" in an ordinance). 1908,
Steidtmann v. Lay Co., 234 111. 84, 84 N. E. 640 ("f. o. b.").
1904, Stoner v. Zachary, 122 la. 287, 97 N. W. 1098 (meaning of "Nfy." on a bill of lading,
among carriers).
1905, Citizens' State Bank v. Chambers, 129 la. 414, 105 N. W. 692 (interest and com-
missions). 1906, Tubbs v. Mechanics' Ins. Co., 131 la. 217, 108 N. W. 324 (usage as to
"machinery" in a fire insurance policy, excluded).
1905, Home Ins. Co. v. Continental Ins. Co., 180 N. Y. 389, 73 N. E. 65 ("usage and
object of underwriters in inserting the 'pro rata' clause in policies of reinsurance,"
excluded).
1904, O'Brien Lumber Co. «. Wilkinson, 123 Wis. 272, 101 N. W. 1050 (custom of loading
cars).
Compare the rulings as to expert testimony to meanings of words (ante, § 1955).
632
D. INTERPRETATION OF A LEGAL ACT § 2465
§ 2465. Parties' Mutual Understanding ; Identifying a Description.
[Note 1, pax. 1; add:]
1908, Strong v. Carver C. G. Co., 197 Mass. 63, 83 N. E. 328 (contract for license to use
patented machines).
1906, Grout v. Moulton, 79 Vt. 122, 64 Atl. 453 ("satisfactory demonstration" of an auto-
mobile; the vendor's statements at the time of sale, not admitted to explain the term).
[Note 1, par. 2; cuM:]
1907, Inman Mfg. Co. ». American Cereal Co., 133 la. 71, 110 N. W. 287.
[Note 3; add:]
1836, Squire v. Campbell, 1 Myl. & C. 459 (a lease of houses was made, describing the land
as "on the north side of a new street then forming" ; the plan of the streets was shown at
the time, and portrayed an open passage, which passage it was orally represented would be
left free to a width of 100 feet ; afterwards an obstructing statue was sought to be erected ;
on a bUl by the lessees for an injunction, held that the plan could be used to identify the
"new street," on an issue whether the proposed statue would destroy its character ; but that
the representations as to the width of the passage could not be treated as a part of a con-
tract).
1906, Van Diemen's Land Co. v. Marine Board, App. Cas. 92 (the propriety of resorting to
user of the parties, to explain a grant, considered).
1903, Bell V. Staacke, 141 Cal. 186, 74 Pac. 774 (conveyance construed by the parties'
acts under it).
1907, Harten v. Loffler, 29 D. C. App. 490, 503 (contract to convey a piece of land "fronting
on B. Avenue about 60 feet with a depth of about 200 feet," held a latent ambiguity; the
parties' own construction of it, admitted).
1905, Mayberry v. Beck, 71 Kan. 609, 81 Pac. 191 ("except one acre, etc., deeded to Moore's
Branch Church").
1904, Graves v. Broughton, 185 Mass. 174, 69 N. E. 1083 ("one undivided moiety" in a
deed of partition, construed by subsequent conveyances, etc., to mean an estate in severalty).
1910, Blais V. Clare, 207 Mass. 67, 92 N. E. 1009 (construction of an easement).
1906, Shenandoah L. & A. C. Co. v. Clarke, 106 Va. 100, 55 S. E. 561 (parties' acts under
a deed, considered).
[Note 5; add:]
1906, Buffington v. McNally, 192 Mass. 198, 78 N. E. 309 (Stoops v. Smith, Mass., supra,
in the text, followed).
[Note 6, par. 1 ; add:]
1905, Phoenix Assur. Co. v. Boyette, 77 Ark. 41, 90 S. W. 284 ("$ 2000. on cotton in
bales").
1906, Mitau v. Roddan, 149 Cal. 1, 84 Pac. 145 (inspection of crops). 1907, Peterson v.
Chaix, 5 Cal. App. 525, '90 Pac. 948 ("more or less"; conversations, before or at the time
not admitted ; cases collected).
1905, Wellmaker v. Wheatley, 123 Ga. 201, 51 S. E. 436 ("Miss Lowe Wellmaker's place"
identified by parol). 1909, State Historical Ass'n v. Silverman, 6 Ga. App. 560, 65 S. E.
293 (book-contract, the book to describe "important events in Georgia history"; parties'
more detailed understanding, admitted). 1909, Georgia Iron & C. Co. v. Ocean Ace. & G.
Co., 133 Ga. 326, 65 S. E. 775 ("employee" in convict-labor contract; " the construction
the parties themselves put upon the agreement," admitted).
1904, Gage v. Cameron, 212 111. 146, 72 N. E. 204 (contract to assume "existing mort-
gages," etc. ; the mortgages, etc., identified by the circumstances). 1908, McLean Co.
Coal Co. V. Bloomington, 234 111. 90, 84 N. E. 624 (coal contract ; "the practical construc-
633
§2465 PAROL EVIDENCE EULES
[Note 6 — conMnited]
■tion of the instrument by the parties themselves is admissible"). 1908, Cumberledge v.
Brooks, 235 111. 249, 85 N. E. 197 ("my undivided interest in the Chicago lots").
1905, Warner v. Marshall, 166 Ind. 88, 75 N. E. 582 (contract by letter to deed "the lots";
the correspondence and circumstances considered, to interpret the words). 1906, Howard
V. Adkins, 167 Ind. 184, 78 N. E. 665 ("120 acres of land"). 1909, Cleveland C. C. &
St. L. R. Co. V. Gossett, 172 Ind. 525, 87 N. E. 723 (the parties' construction of a railroad
rule, admitted).
1904, Hebb v. Welch, 185 Mass. 335, 70 N. E. 440 ("all plumbing" interpreted by the
parties' conversations, etc.). 1907, Smith v. Vose & S. P. Co., 194 Mass. 193, 80 N. E. 527
(contract to drive a well "to procure water"; the parties' prior conversations, admitted
to show that "water" meant drinkable water, of a quality equal to that procured for an-
other person; the ruling seems erroneous as to the last part). 1909, Jennings v. Puffer,
203 Mass. 534, 89 N. E. 1036 (sale of "my estate" etc. ; the description construed by a con-
versation stating it to be subject to a lease, etc.). 1910, Putnam-Hooker Co. v. Hewins, 204
Mass. 426, 90 N. E. 983 (sale of goods ; previous- negotiations admitted, not to show a parol
warranty, but to interpret the terms used). 1911, Hodgens v. Sullivan, 209 Mass. 533, 95 N.
E. 969 (contract to be void if a sale failed "as at present agreed" ; circumstances admitted).
1906, Wolverine L. Co. v. Phoenix Ins. Co., 145 Mich. 558, 108 N. W. 1088 ("mill buildings,"
etc., applied by the circumstances).
1908, Murdock v. Gould, 193 N. Y. 369, 86 N. E. 12 (contract for services in building;
parol evidence excluded on the facts as involving virtually the insertion of other terms and
not the interpretation of terms actually therein).
1905, Ward v. Gay, 137 N. C. 397, 49 S. E. 884 (sale of "all the pine, poplar, and cypress
trees now standing, etc." ; the circumstances admitted, to apply the terms of description).
1907, Watson v. Lamb, 75 Oh. 481, 79 N. E. 1075 (a contract to sell "my hogs"; an oral
specification of eighty and sixty-five hogs, excluded, but the circumstances were considered
to ascertain what hogs were referred to by "my hogs").
1904, American S. F. Co. v. Gerrer's Bakery, 14 Okl. 258, 78 Pac. 115 (meaning of "con-
signee" in a sale-contract).
1908,, Ranney v. Byers, 219 Pa. 332, 68 Atl. 971 ("the Byers place," in a declaration of
trust, identified).
1906, Morrison v. Hazzard, 99 Tex. 583, 92 S. W. 33 ("25 feet" in a lot).
1908, Hamilton Coal Co. v. New York & P. C. & C. Co., 2d C. C. C, 160 Fed. 75 ("our
Big Vein, Cumberland" coal; prior negotiations of parties, admitted). 1909, HartQn
■». Loeffler, 212 U. S. 397, 29 Sup. 351 (contract to sell land described as having a frontage
of "about 60 feet, with a depth of about 200 feet" ; a line run from the 60-foot point would
cut through a building on the land ; held that the circumstances and the conversations at
the time of making the contract could be used to interpret and identify the boundary).
1912,Standard Scale & S.Co. v. Reiter.C.C. A., 199 Fed.91 (contract to employ as "manager" ;
the parties' conversations admitted). 1913, Miller v. Spring Garden Ins. Co., 9th C. C. A.,
202 Fed. 442 ("ordinary alterations and repairs"; parties' conversations, admitted).
1906, Fayter v. North, 30 Utah 156, 83 Pac. 742 (deed of land, with "all tenements, here^
ditaments, privileges, and appurtenances thereunto belonging, or therewith used and
enjoyed" ; a valuable irrigation ditch was on the land ; conversations between vendor and
vendee at the time of the sale, concerning the use of the ditch, were admitted "to show how
the parties themselves construed and applied the contract to the subject matter").
1905, Chesapeake & O. R. Co. v. Deepwater R. Co., 57 W. Va. 641, 50 S. E. 890 (corporate
records). 1906, Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895 (contract for coal lands).
1903, Newell v. New Holstein C. Co., 119 Wis. 635, 97 N. W. 487 (contract of sale). 1905,
Corbett V. Joannes, 125 Wis. 370, 104 N. W. 69 (compromise of claims; "in such cases
the contract may be read very differently from the literal sense thereof"). 1910, Klueter v.
Schlitz Brewing Co., 143 Wis. 347, 128 N. W. 43 ("as per your conversation" ; the con-
versation admitted).
634
D. INTERPREXApiON OF A LEGAL ACT §2471
§ 2466. Individual Party's Meaning ; (1) Deeds and Contracts.
[Note 1; add:]
1905, Warner v. Marshall, 166 Ind. 88, 75 N. E. 582 (contract by letters to deed property;
the promisor's will, not admitted to interpret the description in the letters).
1904, Graham v. Middleby, 185 Mass. 349, 70 N. E. 416 (alteration of a bond).
1914, Woburn Nat'l Bank v. Woods, — N. H. — , 89 Atl. 491 (contract).
1913, Schmitt v. Stoss,207 N. Y. 731, 100 N. E. 1119 (insurance policy ; apparent meaning
to the insured, as against the insurer's actual meaning, held to prevail).
1909, Hackley Nat'l Banki). Barry, 139 Wis. 96, 120 N. W. 275 (promissory note indorsement).
[Note 5; add:]
1907, Inman Mfg. Co. ■». American Cereal Co., 133 la. 71, 110 N. W. 287 (the general prin-
ciple considered).
§ 2467. Same : (2) Wills.
[Note 1; add:]
England: In re Ofner, Samuel v. Ofner, [1909] 2 Ch. 60 (bequest to "my grandnephew
Robert O. "; there was no Robert O., but there was a Richard O. ; memorandum of the
testator, showing that he called Richard "Robert," admitted; "a man always having
called John 'Richard' is presumed in his will to have meant John when he says 'Richard'").
In re Halston, Ewen v. Halston, [1912] 1 Ch. 435 (devise to "John William H., the son of
Israel H., of C. in the county of E.," in a will of 1891 ; Israel fl!. had four sons, John William
H., who had died in 1874, only ten days old ; James Malet H. ; John Robert H., the claim-
ant ; and Horace Edward H. ; there was evidence that the testator knew of the eldest child's
death ; the testator himself waS named John William H. ; devise awarded to John Robert
H., citing In re Ofner, supra).
Canada: 1903, Travers v. Casey, 35 N. Br. 229, 233 ("all property," etc., construed by
the testator's circumstances and prior actions).
[Note 2; add:]
1906, Shipley v. Merc. T. & D. Co., 102 Md. 649, 62 Atl. 814 (meaning of the term "dower
and thirds" ; the testator's declarations as to how he had provided for his wife, excluded).
1905, Ackerman v. Crouter, 68 N. J. Eq. 49, 59 Atl. 574 (devise of "the farm I own at W.
and known as the David D. A. W. farm" ; that the testator "habitually spoke" of a cer-
tain three tracts as the "W. farm," admitted).
1913, Arnold's Estate, 240 Pa. 261, 87 Atl. 590 (testatrix' usage of the word "things,"
admitted ; opinion not clear).
§ 2470. Sources of Interpretation ; All Extrinsic Circumstances may be
Considered.
[Text, p. 3500, at the end -of the quotations ; add a new note 16 :]
i« 1911, Northrup v. Columbian Lumber Co., 5th C, C. A., 186 Fed. 770, 775 (devise to
various children ; the facts of the testator's property, admitted ; "evidence may be received
as to every material fact relating to the person who claims under the will and to the property
devised, and to the circumstances of the testator and his family and affairs, so as to lead
to a correct decision" etc. ; approving the text above).
§ 2471. Exception for Declarations of Intention.
[Note 2; add:]
1903, Brown v. Quintard, 177 N. Y. 75, 69 N. E. 225 (former revoked will, offered to
aid in interpretation, excluded).
635
§ 2471 PAROL EVIDENCE RULES
[Note 6; add:]
1905, Holt's Estate, 146 Cal. 77, 79 Pac. 585 (plaintiff was a daughter by a former marriage
of the wife of the testatrix' brother; under a bequest to "my nieces," semble, the testa-
trix' declarations were admissible to show that she had "considered appellant as her
niece").
[Note 6; add:]
1906, Gilmore v. Jenkins, 129 la. 686, 106 N. W. 193 ("to my five daughters, the undivided
one fifth of etc. " ; the testator's intent to give each of them one fifth, excluded).
1905, Best V. Berry, 189 Mass. 510, 75 N. E..743 (bequest to C. and B. to be divided equally ;
C. having died before the testatrix, a memorandum of the testatrix' intention was not
admitted to show her intent as to the share undisposed of in the will). 1909, Sibley v.
Maxwell, 203 Mass. 94, 89 N. E. 232 (direction in a will to deduct from a son's share "an
account . . . the amount above written, $13,959.14"; subsequent letters, etc., showing
a reduction of the amount, excluded). 1910, Walton v. Draper, 206 Mass. 20, 91 N. E.
884 (death of devisees childless).
1906, App V. App, 106 Va. 253, 55 S. E. 672 (meaning of the will).
The rule applies equally to a contract:
1908, Middleworth v. Ordway, 191 N. Y. 404,84 N. E. 290 (contract of adoption; instruc-
tions to the scrivener, excluded).
§ 2472. Same : (1) Exception for Equivocation, etc.
[Note 2; add:]
1905, Hubbuck's Estate, Prob. 129 (cited post, § 2473, n. 1).
1912, Re Piper, Ont. H. C. J., 2 D. L. R. 132 (meaning of "residue"; testator's draft of
the will, excluded).
1913, Hitchcock v. Board of Home Missions, 259 111. 288, 102 N. E. 741 ("be equally divided
between Home Missions," etc. ; the testatrix' conversations as to her intentions, admitted
to show which board was signified).
1911, Suman v. Harvey, 114 Md. 241, 79 Atl. 197 (cited more fully ante, § 2463,
n. 5).
[Note 3; add:]
1912, Hooey v. Tripp, Ont. D. C, 2 D. L. R. 136 (deed of "the west half of lot 8," which
was an irregular triangle ; parties negotiations considered ; annotated case).
1911, Decker v. Stansberry, 249 111. 487, 94 N. E. 940 (deed of "the N. E. | and the undivided
I of the N. W. i of thp N. W. z of Section 15" ; issue whether this signified the N. E. of
Sect. 15, or the N. E. j of the N. W. | of Sect. 15 ; the grantor's ownership of the latter
only, and the area of the acreage as described, were taken as facts justifying the latter
meaning ; the testimony of the justice of the peace preparing the deed, and the grantor's
admissions, were considered).
1905, Baker Co. v. Huntington, 46 Or. 275, 79 Pac. 187 (sheriff's bond to perform "the
duties of such office" ; intention of the parties to apply it to his office as sheriff or as tax-
collector also, admitted).
§ 2473. Same : Blanks and Latent Ambiguities.
[Note 1, par. 1 ; add:]
1905, Hubbuck's Estate, Prob. 129 (a bequest "unto my grand-daughter all my ^eal
and personal etc." ; there were three granddaughters, and a son claimed against them on
the ground that the bequest was void ; held not void, and evidence of declarations of in-
tention admitted ; "the distinction is that, in this case, it is not a total blank").
636
D. INTERPRETATION OF A LEGAL ACT §2474
[Note 1 — contimted]
1905, Henderson v. Henderson, L. R. 1 Ire. 353 (bequest to "my grandsons, R. W. H.
and J. B. H." ; testator had two grandsons who were brothers, W. R. H. and J. B. H., and
a third grandson, R. W. H. ; the testator's instructions to the scrivener, etc., admitted ;
but the case is erroneously referred to in the opinion as one of "latent ambiguity").
1905, Crawford v. Verner, 122 Ga. 814, 50 S. E. 958 (deed held void for uncertainty of
description).
1905, Harman v. People, 214 111. 454, 73 N. E. 760 (tax judgment held not void for ambiguity,
the evidence not showing that the property described could not be located).
1903, La Vie v. Tooze, 43 Or. 590, 74 Pac. 210 (power of attorney to "Conrad Krebs and
Krebs, composing the firm of Krebs Brothers" ; tlie blank allowed to be applied by parol
to Leonard and M. W. Krebs).
§ 2474. Same : (2) Exception for Erroneous Description.
[Note 5; add:]
In re Ofner, Samuel v. Ofner, [1909] 2 Ch. 60 (bequest to "my grandnephew Robert O.";
there was no relative Robert O. ; but there was a grandnephew Richard O., and three other
grandnephews, two of whom were otherwise provided for; Richard was a brother of one
of them ; a memorandum of the testator identifying "Robert O." as this brother, admitted ;
Doe V. Hiscocks mentioned in argument, and virtually departed from).
In re Halston, Ewen v. Halston, [1912] 1 Ch. 453 (the facts are stated ante, § 2467, n. 1 ;
testator's expression that the land would be John Robert H.'s some day, admitted ; Doe
v. Hiscocks not cited, nor any of the foregoing cases).
[Note 6; add:]
1907, Dominici's Estate, 151 Cal. 181, 90JPac. 448 (devise to "my sister L. J., and my
nephew H. S., and his sister my niece, all residing in Luchow, Hanover, Germany," and a
codicil reciting the death of "my sister L. J." with bequest of her share "to the other two
residuary legates therein named, H. S., and to his sister my niece, whose name is M. K.
and whose residence is Salzwedel, Altmark, Germany"; on inquiry, H. S. had an only
sister C. S. still living at Luchow, and the M. K. at Salzwedel was daughter of another
sister of the testator ; testator's instructions to the scrivener, admitted, in spite of Civ. C.
§ 1340 ; distinguishing such instructions from fugitive oral expressions). 1912, Donnellan's
Estate, Tracy v. O'Reilly, 164 Cal. 14, 127 Pac. 166 (bequest to "my niece Mary, a resident
of New York, said Mary being the daughter of my deceased sister Mary"; there were
two nieces, one named Mary, in Ireland, and one named Annie in New York; "extrinsic"
evidence admissible).
1905, Oliver v. Henderson, 121 Ga. 836, 49 S. E. 743 (the facts are stated in the citation
post, § 2477, n. 7; an allegation that the scrivener was instructed to write "78" and WTote
"68" by mistake, was held immaterial).
1909, Parks v. Baker, 81 Kan. 351, 105 Pac. 439 ("north line of lot 12" etc.; "actual
agreement" admitted).
1912, BuUard v. Leach, 213 Mass. 117, 100 N. E. 57, semhh (bequest of moneys now de-
posited in the Worcester Five Cents Savings Bank; evidence held admissible that the
testatrix had no depogit in that bank but had one in the Worcester Co. Institution for Sav-
ings, and that she "intended to designate the latter instead of the former").
1904, Wheaton v. Pope, 91 Minn. 299, 97 N. W. 1046 (devise to S. of "South west quarter
of N. E. J section one in township, etc., running West 160 rods," making a tract of land
whose "location would be in the S. W. quarter of section one, and such tract was never
owned by the testator"; on evidence that the testator had described a particular tract
to the scrivener as intended to be devised to this devisee, and that the scrivener had errone-
ously copied it, the devise thus interpreted was given effect).
637
§2475 PAROL EVIDENCE RULES
§ 2475. Same : (3) Exception for Rebutting an Equity, etc.
[Note 2; add:]
Contra ; 1910, Arthur v. Arthur, 143 Wis. 126, 126 N. W. 550 (under statutory imphcations ;
authorities collected).
[Note 4 ; add :]
In re Shields, Corbould-Ellis v. Dales, [1912] 1 Ch. 591 (ademption of a legacy by a dupli-
cate gift in the testator's life time).
1906, Bromley v. Atwood, 79 Ark. 357, 96 S. W. 356 (intent of a bequest to forgive a debt ;
testatrix' statements admitted).
1911, Blackett v. Ziegler, 153 la. 344, 133 N. W. 901 (revivor of an earlier will by revocation
of a later one ; careful opinion, by Deemer, J.).
1910, In re Battis, 143 Wis. 234, 126 N. W. 9 (whether the presumption of revocation from
marriage and birth may be rebutted by expressions of intent).
[Note 5; add:]
and in Wisconsin : 1904, Sandon v. Sandon, 123 Wis. 603, 101 N. W. 1089.
[Note 6, par. 1 ; add:]
■Accord: 1904, Brown v. Brown, 71 Nebr. 200, 98 N. W. 718 (collecting the cases).
1906, Brown v. Brown, 77 Nebr. 125, 108 N. W. 180 (no authority cited).
1909, Hedderich v. Hedderich, 18 N. D. 488, 123 N. W. 276.
Contra: 1907, Feet v. Peet, 229 111. 341, 82 N. E. 376 ("the testator's statements, either
before or after making the will," held inadmissible; but the circumstances of the testator's
affairs, etc., are admissible ; on the former part of the ruling the opinion purports to follow
the Hawhe case, supra, but three judges dissent as to the result on the facts).
§ 2477. Falsa Demonstratio ; Application to Deeds and Wills.
[Note 1 ; add :]
1905, Garnier's Estate, 147 Cal. 457, 82 Pac. 68.
1910, Duncan v. Eagle Rock G. M. & R. Co., 48 Colo. 569, 111 Pac. 588.
1904, Leverett v. BuUard, 121 Ga. 534, 49 S. E. 591.
1906, Kerr v. De Lancy, — Ky. — , 91 S. W. 286 (extreme illustration). 1910, Daniel v.
New Era L. Co., 137 Ky. 535, 126 S. W. 108 (calls of a survey omitted).
1907, Hart v. Murdock, 80 Nebr. 274, 114 N. W. 268 (survey describing a course as "east"
instead of "west").
1819, Cherry v. Slade, 3 Murph. N. C. 82 (leading opinion, by Taylor, C. J.). 1905, Hill
V. Dalton, 140 N. C. 9, 52 S. E. 273.
1904, Resurrection G. M. Co. v. Fortune G. M. Co., 128 Fed. 668, C. C. A. (mining claim).
1905, Clayton v. Gilmer Co. Ct., 58 W. Va. 253, 52 S. E. 103.
This rule has been applied even to a description in a statute : 1904, Zimmerman v. Brooks,
118 Ky. 85, 80 S. W. 443.
[NoU3; add:]
1905, Warner v. Marshall, 166 Ind. 88, 75 N. E. 582 (contract by letter to deed certain
lots ; an inconsistent clause stating the value as $ 10,000, held non-essential and rejectible).
[Note 5; add:]
Eng.: 1894, Re Seal, 1 Ch. 316, 321 (rule oi falsa demonstratio considered).
Ire. : 1908, M'Hugh v. M'Hugh, 1 Ire. 155 (cited more fully arUe, § 2463, n. 3 ; the
opinion is apparently ignorant that the present doctrine was a simple exit for the dilemma
created by the other rule).
638
D. INTERPRETATION OF A LEGAL ACT § 2477
[Note 5 — continued]
Can. : 1910, Re Clement, 22 Ont. L. R. 121 (devise of "the S. W.| of lot No. 3 in the
4th concession of the township of North Dorchester ; " the testator owned the S. § of the N. f
of lot 3, but not the S. W.f ; held void, there being no "words in the will which would
be effective to dispose of the land actually owned by the testator if the wrong description
were entirely omitted"; prior Ontario cases fully examined, per Riddell, J.).
1910, Smith v. Smith, 22 Ont. L. R. 127 (devise of "the S. W. 50 acres of lot 1, concession
12, Lobo" ; the testator did own 50 acres in lot 1, but the N. W. j, not the S. W. J ; the
wiU referred twice to "all my estate" ; held effective, on the principle stated in Re Clement,
supra).
[Note 7; add:]
Ga. : 1905, Oliver v. Henderson, 121 Ga. 836, 49 S. E. 743 (devise of a "lot of land (78)
in the Second District of Dooly County" ; the testator did not own lot 78, but lot 68 ; "it
should have been alleged also that the testator owned only one lot in the Second District
of D. Co., which lot was No. 68," and then the Court "might well have" given effect to
the devise).
III. : 1905, Lomax ti. Lomax, 218 111. 629, 75 N. E. 1076 (a will devised "the S. W. fractional
quarter of Section 24, T. 40, R. 12, E, of the 3d P. M., containing about 55.87 acres more
or less," and also devised "the rest, residue, and remainder of my estate"; the testator
owned in S. 14, but not in S. 24 ; it was offered to show that "a mistake was made by the
scrivener in drawing the will," in writing "24" for "14" ;, it appeared that no other quarter
section in T. 40 contained approximately 55.87 acres, except the S. W. J in S. 14 ; the offer
as made was rejected, and correctly, on the authority of Kurtz v. Hibner ; but the Court
was clearly wrong in not going further and applying the words "my estate" and "55.87
acres"- to the S. W. J of S. 14, as done in Bowen v. Allen, Decker v. Decker, supra, regardless
of the erroneous form of the offer). 1907, Dillard v. Jones, 229 III. 119, 82 N. E. 206
(certain intestates owned various property, including 10 acres off the north side of the N. E.
i of the N. W. J of Sect. 4, Township 8 S., Range 2 E. ; on a bill for partition, the land was
sold to the plaintiff ; but throughout the proceedings was described as "S. E. J " instead of
"N. E. J " ; held that the decree and deed could be corrected to cover the land actually
owned by the intestates). 1907, Douglas v. Bolinger, 228 111. 23, 81 N. E. 787. 1907,
Felkel v. O'Brien, 231 111. 329, 83 N. E. 170, (bill to construe a devise of "the N. half of the
S. E. J of Section 27, containing 80 acres more or less" ; the testator did not own the whole
N. half, but owned the E. half; held that the word "north" could be struck out by inter-
pretation, thus reading "the half . . . containing 80 acres"). 1908, Collins v. Capes, 235
111. 560, 85 N. E. 934 (the testator devised to a son "the west haff of the north-east quarter
of section ten," etc., "containing about seventy-six acres," and then gave "all the balance
and residue of my property" to his wife; he owned no west half but did own a north half
of the quarter described, and no other land in that county ; the Court applied the descrip-
tion to the north half, on the correct theory as laid down in Decker v. Decker ; moreover the
opinion expressly declares that the absence of the words "my real estate," found in the
will of Decker v. Decker, is immaterial, since "the presumption is that the testator intended
to dispose of property which he owned," citing three cases from other jurisdictions; thus
the effect is to overrule the doctrine-of Kurtz v. Hibner on that point as explained after-
wards by Caton, J., and assumed in later cases ; the unfortunate thing about the opinion
is (1) that it assumes to be following Kurtz v. Hibner, and (2) that it does not expressly
point out that Bingel v. Volz and Lomax v. Lomax are also overruled so far as they ignored
the present principle of implying the testator's intention ; the odd thing is that express
words of such intent, "the balance of my property," were actually in the present will, so
that there was no need for the Court to imply them into it). 1909, Gano v. Gano, 239
111. 539, 88 N. E. 146 (devise of "the S. E. i of the N. E. | and the N. E. I of the N. W. |
of Section 14," etc. ; testator did not own the S. E. j of the N. E. J, nor any part of the
N. E. 5, but owned all of the N. W. | ; moreover, he had 40 years before acquired property
639
§2477 BY WHOM EVIDENCE IS PRESENTED
[Note 7 — continued]
described as "the S. E. J of the N. E. |" by mutual mistake for"S. E. iof the N. W. i" ;
held, three judges dissenting, that the S. E. f of the N. W. j passed ; following Decker v.
Decker; but really the will's description should gave been treated as a settled term of
description for the N. W. |, on the theory of §§ 2467, 2463, anU). 1910, Graves v. Rose,
246 111. 76, 92 N. E. 601 (devise of the "N. W. | of section 12," and the "N. W. | of section
9" ; the testator in fact owned the N. E. f of section 12 and the S. W. | oP section 9 ; the
devisees were already in possession of the tracts owned and said to be intended by the tes-
tator, under an alleged promise to convey ; the devisees alleged that the wrong words were
"used by mistake" ; the other heirs prayed for a partition; the trial Court decreed that
the letters N and W respectively should be "stricken out as surplusage," and that the devi-
sees should take the tracts thus described and already in their possession ; held, erroneous,
as "this was nothing but reformation for the piffpose of correcting mistakes of the testa-
tor" ; three judges dissenting; the majority opinion recognized that the letters N and W
might be rejected, but held that not enough description remained in the will to identify
the tracts ; this is of course a tenable view, and is that of Caton, J., above). 1911, Clancy
V. Clancy, 250 111. 297, 95 N. E. 141 (testator devised "the S. ^ of the W. J of the N. E. J of
Sect. 4" ; he owned only the S. E. J of the N. W. ^ in that section; held, that by ignoring
the erroneous part of the description, nothing sufficient remained, and that the devise was
void).
On the Kurtz v. Hibner doctrine in Illinois, it is now essential, for correct appreciation
of the significance of the doctrine, to study Professor Henry Schofield's masterly article,
"The So-called Equity Jurisdiction to Construe and Reform Wills" (Illinois Law Rev.,
VI, 485).
Iowa: 1907, Whitehouse v. Whitehouse, 136 la. 165, 113 N. W. 759 (Eckford v. Eckford
followed).
Massachusetts: 1908, Polsey v. Newton, 199 Mass. 450, 85 N. E. 574 (bequest to "their
three children" applied to the testatrix' three grandchildren ; two judges diss.).
Missmiri: 1909, Childers v. Pickenpaugh, 219 Mo. 455, 118 S. W. 478 (Riggs v. Myers
followed).
§ 2478. Sundry Rules ; Interpretation of Statutes.
\Note 1 ; add ;]
1905, Nye v. Foreman, 215 lU. 285, 74 N. E. 140.
1905, State v. Kelly, 71 Kan. 811, 81 Pac. 450 (opinion by Greene, J., collecting authorities).
1913, Pelletier v. O'Connell, — Me. — , 88 Atl. 55.
1905, Chesapeake & O. R. Co. v. Deepwater R. Co., 57 W. Va. 641, 50 S. E. 890.
[Te3A, p. 3519; add a new par. (3) :]
(3) To determine the validity of an election as ejcpressing in ballots the
will of the majority, it would seem that the general sense of a ballot as ac-
cepted by persons voting would be the standard^ and that such standard
could be and must be ascertainable by individual testimony or aflEidavits.'
3 1910, People v. Sullivan, 247 111. 176, 93 N. E. 97 (a ballot "For or Against etc." fol-
lowed by blanks for "Yes" and "No"; afiBdavits that voters meant by "Yes" to vote
for the proposal, admitted).
§ 2484. Evidence sought by the Judge ex mero motu.
[Note 1; add:]
1902, Carle «. People, 200 111. 494, 66 N. E. 32 (State's attorney allowed to state that he
did not wish to call a certain eye-witness, and to request the Court to call him, and then
640
BURDENS OF PROOF §2487
[Note 1 — ■ continued]
to cross-examin& him, the defendant also cross-examining). 1911, People v. Cleminson,
250 111. 135, 95 N. E. 157 (the trial Court should not call witnesses at the suggestion of the
State's attorney, except when they are eye-witnesses and then only in unusual instances;
Carle d. People, approved ; here three witnesses were held improperly called by the judge
for cross-examination by the State's attorney).
In People v. Dickerson, 164 Mich. 148, 129 N. W. 199 (1910), Mich. St. 1905, No. 175,
providing that in homicide cases, on issues of expert knowledge, "the Court shall appoint
one or more suitable disinterested persons, not exceeding three, to investigate such issues
and testify at the trial," vnthout preventing the parties' use of other witnesses, was held
unconstitutional, mainly because "the power of selecting and appointing witnesses . . .
is in no sense a judicial act. " It is a pity that the Court suffered such a severe attack of
dikastophobia on the sight of this harmless statute. As the history and authorities of the
present subject are ignored in the opinion and as its fantastic logic would hardly be fol-
lowed elsewhere, no further notice of its contents is needed.
The appointment of expert witnesses by the Court is one of the expedients proposed for
reforming the shortcomings of the present system ; see the articles cited ante, § 562, n. 1,
and the statutes there quoted.
[Note 3; add:]
1911, People V. Bernstein, 250 111. 63, 95 N. E. 50 (on the facts, held that the trial judge's
examination of two witnesses in chief was improper).
[Text, 1. 3 from end of §, after "parties" ; insert:]
or may ex mero motu exclude inadmissible evidence*
* 1912, Electric Park Amusement Co. v. Psichos, 83 N. J. L. 262, 83 Atl. 766 (here the
judge excluded an incompetent witness though the opponent had made no objection ; the
party offering the witness made the unconscionable claim that he had a right to put in any
illegal evidence if the opponent failed to object; the Supreme Court sensibly refused to
sanction this last step in the reduction of the trial judge to the helpless referee of an un-
scrupulous combat between skill and ignorance).
§ 2486. Burden of Proof ; First Meaning ; Test for this Burden.
[Note 2; add:]
1908, Prentice v. Crane, 234 111. 302, 84 N. E. 916 (that representations were not true).
1914, Abhau v. Grassie, 262 111. 636, 104 N. E.,1020 (lack of a license for contractor claiming
mechanic's lien).
1907, Beckman v. Lincohi & N. W. R. Co., 79 Nebr. 89, 112 N. W. 348 (land-condemnation
proceedings).
1913, Young V. Woodman, — N. Mex. — , 135 Pac. 86 (non-execution of a contract).
[Noted; add:]
1906, Kettles v. People, 221 111. 221, 77 N. E. 472 (practising dentistry without a license;
the defendant has the burden of proving a license).
§ 2487. Same : Second Meaning ; Duty of Producing Evidence.
[NoU8; add:]
1906, Woodward v. Chicago M. & St. P. R. Co., 145 Fed. 577, 580, C. C. A.
1904, Olmstead v. Oregon S. L. R. Co., 27 Utah 515, 76 Pac. 557.
The best example of this application of the theory is now found in the able opinion of
641
§2487 BY WHOM EVIDENCE IS PRESENTED
[Note 8 — continued]
Jaggard, J., in Continental Ins. Co. v. Chicago & N. W. R. Co., 97 Minn. 467, 107 N. W.
548 (1906).
§ 2489. Shifting the Burden of Proof.
[NoU2; add:]
1909, Ginn v. Dolan, 81 Ohio 121, 90 N. E. 141 (notes given for valuable consideration).
§ 2491. Presumptions of Law ^d of Fact.
[Note 2,1 6; add:]
1913, Morris v. Minneapolis St. P. & S. S. M. R. Co., 25 N. D. 136, 141 N. W. 204.
[Note 3; add:]
1909, John Hancock Ice Co. v. Perkiomen R. Co., 224 Pa. 74, 73 Atl. 194 (shifting the
burden in cases of fire; theory examined).
[Note 4; add:]
Compare the discussion about the CoflBn case, U. S., post, § 2511, n. 3.
[Note 5; add:]
1909, Reclamation Dist. No. 70 v. Sherman, 11 Cal. App. 399, 105 Pac. 277, 285.
1909, Clifford v. Taylor, 204 Mass. 358, 90 N. E. 862.
1907, Sheldon v. Wright, 80 Vt. 298, 67 Atl. 807.
A later opinion in Connecticut abandons this position : 1909, Bergan v. Central Vermont
R. Co., 82 Conn. 574, 74 Atl. 937 ("Presumptions like that appealed to have no probative
force; .they perform an oflBce in the absence of evidence").
See an interesting note, upholding a different and median view, in the Columbia Law
Review (1908), VIII, 127.
[Note 6; add:]
Accord: 1904, Vincent v. Mutual R. F. L. Ass'n, 77 Conn. 281, 58 Atl. 963, per Prentice, J.
1907, Cleveland, C. C. & St. L. R. Co. o. Hadley, 170 Ind. 204, 82 N. E. 1025.
1911, Scarpelli v. Washington W. P. Co., 63 Wash. 18, 114 Pac. 870.
§ 2493. Conflicting Presumptions.
[Noie2; add:]
1909, State v. Forbes, 75 N. H. 306, 73 Atl. 929 (example of counter-evidence not sufficing
to take the case from the jury).
§ 2494. Prima Facie Evidence ; Sufficient Evidence, etc.
[Note 1 ; add :]
1907, Polhemus v. Prudential R. Co., 74 N. J. L. 570, 67 Atl. 303 ("the prima facie evi-
dence became decisive of the issue").
1913, Lehigh Valley R. Co. v. Clark, 3d C. C. A., 207 Fed. 717 (effect of St. 1887, Feb. 4,
c. 104, § 14, making the Interstate Commerce Cominission's findings "prima facie
evidence," considered).
[Note 4; add:]
1911,Brock V. Metropolitan L. Ins. Co., 156 N. C. 112, 72 S. E. 213.
1913, State v. Wilkerson, 164 N. C. 431, 79 S. E. 888 (possession of liquor; opinion by
Walker, J.).
642
BURDENS OF PR(X)F §2495
[Note 12; add:]
1905, Campbell v. Everhart, 139 N. C. 503, 52 S. E. 201.
1904, Hehir v. Rhode Island Co., 26 R. I. 30, 58 Atl. 246 (good opinion by TiUinghast, J.).
[Note 12, last line; add:]
as also the opinion of Powell, J., in Georgia R. & E. Co. v. Harris, 1 Ga. App. 714, 57 S. E.
1076 (1907).
[Note 13; add:]
1904, Vogeler v. Devries, 98 Md. 302, 56 Atl. 782.
1903, Lamkin v. Johnson, 72 N. H. 344, 56 Atl. 750.
1906, Chybowski v. Bucyrus Co., 127 Wis. 332, 106 N. W. 833.
[Note 14; add:]
1905, Haughton «. iEtna L. Ins. Co., 165 Ind. 32, 73 N. E. 592.
1905, Westfall v. Wait, 165 Ind. 353, 73 N. E. 1089.
[Note 17, par. 2; add:]
1905, Morey's Estate, 147 Cal. 495, 82 Pac. 57.
1912, Donovan v. Connecticut Co., 86 Conn. 82, 84 Atl. 288.
1909, Wilson v. Jernigan, 57 Fla. 277, 49 So. 44 (careful opinion by Shackleford, J., approv-
ing Professor Thayer's exposition and the passage from Lord Halsbury's opinion in Metro-
politan R. Co. V. Wright).
1903, Pittsburg, C. C. & St. Louis R. Co., v. Banfill, 206 111. 553, 69 N. E. 499.
1904, Craft v. Norfolk & S. R. Co., 136 N. C. 49, 48 S. E. 719.
1906, Woodward v. Chicago, M. & St. P. R. Co., 145 Fed. 577, C. C. A.
1913, Wilson v. Johnson, — W. Va. — , 79 S. E. 734.
1911, Kroger v. Cumberland F. P. Co., 145 Wis. 433, 130 N. W. 613 (careful opinions by
Marshall, J., and Winslow, C. J., discussing the proper course and test where the appellate
judges themselves differ in opinion).
§ 2495. Same : Direction of a Verdict, etc.
[Note 4, par. 1 ; add:]
A careful opinion, full of research, is that of Blodgett, J., in Gunn v. Union R. Co., 27 R. I.
320, 62 Atl. 118 (1905).
[Ngte 4 ; add a new par. :]
But under the California Code (P. C. § 1118), and its followers, the Court may only
advise thp jury to acquit, and the jury need not follow the advice ; therefore, a refusal to
give such advice cannot be an error of law :
1910, State v. Wright, 20 N. D. 216, 126 N. W. 1023.
[Note 6; add:]
1905, Van Cott v. North J. St. R. Co., 72 N. J. L. 229, 62 Atl. 407.
Compare the rule of § 2496, n. 3, post.
[Note 7; add:]
The ruling in Ayers v. Wabash R. Co., 190 Mo. 228, 88 S. W. 608 (1905), is probably not
contra.
[Note 8; add:]
Accord: 1906, Young v. Chandler, 102 Me. 251, 66 Atl. 539. 1905, Uzzell v. Horn, 71 S. C.
426, 51 S. E. 253.
643
§ 2495 BY WHOM EVIDENCE IS PRESENTED
[Note 8 — continued] '
Contra: 1905, Sperl's Estate, — Minn. — , 103 N. W. 502 (for wills).
1910, Giles V. Giles, 204 Mass. 383, 90 N. E. 595.
Whether the appellate Court can here override a trial Court by reversing a verdict Lf he
does not, is a separate question :
1912, Slocum V. New York Life Ins. Co., 228 U. S. 264, 33 Sup. 523 (where the trial judge
refuses to direct a verdict for the defendant, and the jury finds a verdict for the plaintiff,
and the appellate court is of opinion that there was not sufficient evidence for the jury, then
the appellate court cannot order a verdict and judgment to be entered for the defendant
but can only set aside the verdict and order a new trial ; four judges dissenting).
This question is vital to the modern efforts for improving procediu-e by preventing
needless new trials; and statutes have attempted to authorize it, notably Massachusetts
and Pennsylvania. The constitutional inhibition, as declared by the majority opinion
in the Slocum case, has been ably questioned in the report of a Committee of the American
Bar Association (Proceedings, 1913, XXXVIII, 561). The most searching and exhaustive
examination of the subject, setting forth both the history and the policy of such a practice,
is now to be found in Professor Henry Schofield's articles, entitled "New Trials and the
Seventh Amendment; Slocum v. N. Y. Life Ins. Co." (Illinois Law Review, VIII, 287,
381, 465). See further : 1913, Bothwell v. Boston E. R. Co., 215 Mass. 467, 102 N. E. 665 ;
Mr. J. L. Thorndike, "Jury Trial in the United States Courts" (Harvard Law Rev., XXVI,
732).
[Note 10; add:]
1910, People v. Walker, 198 N. Y. 329, 91 N. E. 806 (receiving stolen goods).
Compare the treatment of this question in the following : 1891, People v. Neumann, 85
Mich. 98, 48 N. W. 290. 1904, People v. Remus, 135 Mich. 629, 98 N. W. 397.
But a peremptory instruction for the defendant is allowable : 1912, Blankenship v. Com.,
147 Ky. 768, 145 S. W. 752.
[Note 11; add:]
1903, Lee v. Missouri Pac. R. Co., 67 Kan. 402, 73 Pac. 110.
§ 2496. Same : Waiver of Motion, etc.
[Note 1 ; add:]
1906, State v. Banusik, — N. J. L. — , 64 Atl. 994, semble.
For the effect of a motion for a- new trial upon exceptions to rulings upon specific evi-
dence, see ante, § 20, n. 8.
[Note 2, par. 1; add:]
1905, Sorensen v. Sorensen, 68 Nebr. 483, 103 N. W. 455.
[Note 3, par. 1 ; add under Accord:]
1913, R. V. Wakelyn, Alta. S. C, 10 D. L. R. 455 (corroboration of prosecutrix on a charge
of rape under age).
1906, Lyon v. United Moderns, 148 Cal. 470, 83 Pac. 804.
1906, Shields v. Johnson, 12 Ida. 329, 85 Pac. 972.
1905, Streator I. Tel. Co. «. Continental T. C. Co., 217 111. 577, 75 N. E. 546. 1905, Warth
!). Loewenstein, 219 111. 222, 76 N. E. 378. 1909, Reavely jj. Harris, 239 111. 526, 88 N. E.
238.
1904, Esler v. Camden & S. R. Co., 71 N. J. L. 180, 58 Atl. 113 (nonsuit).
1907, Spencer v. State, 187 N. Y. 484, 80 N. E. 375 (applied to Court of Claims).
1904, Koon v. Southern Ry., 69 S. C. 101, 48 S. E. 86..
644
BURDENS OF PROOF §2497
[Note 3 — contintied]
1905, Columbia N. & L. R. Co. v. Means, 136 Fed. 83, C. C. A.
1906, Gardner v. Porter, 45 Wash. 158, 88 Pac. 121.
[Note 3, par. 1, at the end, under Contra; add:]
But in North Carolina the rule was changed by St. 1899, c. 131, amending St. 1897, c. 109 :
1900, Means v. Carolina C. R. Co., 126 N. C. 424, 35 S. E. 813. 1902, Ratliff v. Ratliff,
131 N. C. 428, 42 S. E. 887. 1904, Jones v. Warren, 134 N. C. 390, 46 S. E. 740. 1904,
Southern L. & T. Co. v. Benbow, 135 N. C. 303, 47 S. E. 435. 1904, Earnhardt v. Clement,
137 N. C. 91, 49 S. E. 49 (failure to renew the motion). 1904, Blalock v. Clark, 137 N. C.
140, 49 S. E. 88 (same). The final result of the statutes of 1897, 1899, and 1901, is now
phrased as follows : Rev. 1905, § 539 ; "Demurrer to Evidence. When . . . the plaintiff
, shall have produced his evidence and rested his case, the defendant may move to dismiss
the action, or for judgment, as in case of nonsuit. If the motion is allowed, the plaintiff
may except and appeal to the Supreme Court. If the motion is refused, the defendant
may except, and if the defendant introduces no evidence, the jury shall pass upon the issues
in the case, and the defendant shall have the benefit of his exception on appeal to the
Supreme Court. But after the motion is refused, he may waive his exception and then
introduce his evidence just as if he had not made the motion. But he may again move
to dismiss after all the evidence on both sides is in. If the motion is then refused, upon
consideration of all the evidence, he may except ; and after the jury shall have rendered
its verdict, he shall have the benefit of such latter exception on appeal to the Supreme
Court." This- seems to be a fair solution, straightforwardly expressed, and should serve
as a model statute in States where similar doubts have arisen.
[Note 3, par. 2 ; add:]
For the effect of a motion by both parties to direct a verdict, see Wolf v. Chicago S. P. Co.,
233 111. 501, 84 N. E. 614 (1908).
§ 2497. Measure of Persuasion. Proof beyond a Reasonable Doubt.
[Note 4: ; add:]
1904, People v. Perry, 144 Cal. 748, 78 Pac. 284.
1909, People v. Burke, 157 Mich. 108, 121 N. W. 282.
1904, State v. Newman, 93 Minn. 393, 101 N. W. 499.
1910, Blue V. State, 86 Nebr. 189, 125 N. W. 136.
1910, State v. Silverio, 79 N. J. L. 482, 76 Atl. 1069.
1908, Abbott V. Terr., 1 Okl. Cr. 1, 94 Pac. 179.
1914, Harris v. State, — Okl. Cr. — , 137 Pac. 365 (reading out of the law the definition in
Rev. L. § 5876).
1914, Wilson v. U. S., 232 U. S. 563, 34 Sup. 347.
1905, State v. Overson, 30 Utah 22, 83 Pac. 562 (as to circumstantial evidence).
1903, Baker v. State, 120 Wis. 135, 97 N. W. 666.
[Note 5 ; add :]
So also Burgess, J., in State v. Bond, 191 Mo. 555, 90 S. W. 830 : "Definitions of it tend to
confuse rather than to enlighten."
The best exposure of the doctrine's vagaries is found in an article by Professor Wm. Trickett,
of the Dickinson School of Law, "Preponderance of Evidence and Reasonable Doubt,"
The Forum (Carlisle, Pa.), X, 75 (1906).
The following list, collecting some recent quibbles, may serve as a museum of legal curios
for future generations :
1910, State v. Schreiber, State v. Adams, 79 N. J. L. 447, 75 Atl. 476.
1910, State v. Leo, 80 N. J. L. 21, 77 Atl. 523.
645
§2497 BY WHOM EVIDENCE IS PRESENTED
[Note 6; add:]
Accord : 1904, State v. Blay, 77 Vt. 56, 58 Atl. 794 ("No definition of the term need be given ") .
1903, Meehan v. State, 119 Wis. 621, 97 N. W. 173.
[Note 12; add, under Accord :]
1904, Delahoyde v. People, 212 111. 554, 72 N. E. 732^.
[Note 12; add:]
Accord: 1909, People v. Bolik, 241 111. 394, 89 N. E. 700. 1906, Dunn v. State, 166 Ind.
694, 78 N. E. 198, semhle (this opinion illustrates the inherently quibbling nature of the
question).
Contra: 1905, State v. Johnson, 14 N. D. 288, 103 N. W. 565.
1912, Inklebarger ». State, 8 Okl. Cr. 316, 127 Pac. 707.
§ 2498. Same : Proof by Preponderance of Evidence.
[Note 1; add:]
1906, Sonnemann v. Mertz, 221 111. 362, 77 N. E. 550 (where a preponderance suffices, it
is incorrect to charge that the jury must be "satisfied").
1905, Devencenzi v. CassineUi, 28 Nev. 222, 81 Pac. 41.
1904, Chaffin v. Fries M. & P. Co., 135 N. C. 95, 47 S. E. 226.
1910, Moore v, Adams, 26 Okl. 48, 108 Pac. 392.
1905, Grotjan v. Rice, 124 Wis. 253, 102 N. W. 551. 1906, Anderson v. Chicago Brass
Co., 127 Wis. 273, 106 N. W. 1077 (a wondrous cobweb of pedantry is here woven to ensnare
the jury's simple mind and the trial judge's tongue).
1907, Pelton v. Spider Lake S. & L. Co., 132 Wis. 219, 112 N. W. 29 (instruction criticised).
[NoU 2; add:]
1911, Fish V. Poorman, 85 Kan. 237, 116 Pac. 898 (testamentary incapacity).
[Note 3; add:]
1911, Cooper v. Spring Valley W. Co., 16 Cal. App. 17, 116 Pac. 298.
1904, Blackmore v. EUis, 70 N. J. L. 264, 57 Atl. 1047 (assault and battery).
1904, KuTz V. Doerr, 180 N. Y. 88, 72 N. E. 926 (assault by discharging a firearm).
Contra: 1913, Usher v. Severance, 86 Vt. 523, 86 Atl. 741 (assault and battery; but here
only the presumption of innocence was involved).
[Note 4; add:]
1913, M. S. V. Regan, 232 U. S. 37, 34 Sup. 213 (action for penalty due under the alien
immigration act).
Contra: 1908, Barron v. Anniston, 157 Ala. 399, 48 So. 58 (city ordinance against sale of
liquor).
[Note 7; add:]
Contra: 1908, In re Newby, 82 Nebr. 235, 117 N. W. 691,
[Note 8; add:]
So in other actions for loss of support : 1904, Woods v. Dailey, 211 111. 495, 71 N. E. 1068
(action for loss of support, under the drainshop act).
[Note 10; add:]
1904, Heyman v. Heyman, 210 111. 524, 71 N. E. 591.
646
BURDENS OF PROOF §2498
lNotel2; add:]
Contra: 1907, State v. Blydenbury, 135 la. 264, 112 N. W. 634.
[Note 13; add:]
1906, Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074 (fraud in, a sale). 1913, Ball's Will,
Ball V. Boston, 153 Wis. 27, 141 N. W. 8 (fraud or undue influence on a testator ; Barnes,
J., diss., in an able opinion).
[Note 15; add:]
1913, Willis V. Zorger, 258 111. 574, 101 N. E. 963 (contract to devise ; citing prior cases).
1909, Frye v. GuUion, 143 la. 719, 121 N. W. 563 (deceased's oral gift or sale).
1904, McKee v. Higbee, 180 Mo. 263, 79 S. W. 407. 1905, Russell v. Sharp, 192 Mo. 270,
91 S. W. 134.
1909, Tousey v. Hastings, 194 N. Y. 79, 86 N. E. 831 (contract to bequeath). 1911, Tay-
lor V. Higgs, 202 N. Y. 65, 95 N. E. 30.
[Note 16; add:]
1910, Wilson-Ward Co. v. Farmers' U. G. Co., 94 Ark. 200, 126 S. W. 847.
1909, Prior v. Davis, 58 Fla. 510, 50 So. 535.
1912, Fife V. Cate, 85 Vt. 418, 82 Atl. 741.
1909, Percy «. First National Bank, 110 Va. 129, 65 S. E. 475.
Contra: 1913, Panhandle Lumber Co. v. Rancoiu-, 24 Ida. 603, 135 Pac. 558.
[Note 17; add:]
1910, Lambert v. Hemler, 244 111. 254, 91 N. E. 435 (adverse possession, by "clear and
positive evidence"). 1910, Ryder v. Ryder, 244 111. 297, 91 N. E. 451 (parol trust, by
"clear, definite, and unequivocal testimony").
1913, Johnston v. Linder, — la. — , 143 N. W. 410 (impeaching a notary's certificate of
acknowledgment). '
1904, Elliott V. Sheppard, 179 Mo. 382, 78 S. W. 627 (impeaching a notary's certificate
of acknowledgment). 1904, McKee v. Higbee, 180 Mo. 263, 79 S. W. 407 (specific per-
formance). , ,
1908, Sheridan Co. v. McKinney, 79 Nebr. 223, 115 N. W. 548 (impeaching a notary's
certificate of acknowledgment). 1907, Johnson Lumber Co. v. Leonard, 145 N. C. 339,
69 S. E. 134 (certificate of married woman's privy examination).
1905, Penland v. Ingle, 138 N. C. 456, 50 S. E. 850 (a custom must be proved "clearly and
convincingly").
1908, Abraham v. Miller, 52 Or. 8, 95 Pac. 814 (sheriff's return, involving validity of a
judgment).
1913, Burke v. Burke, 240 Pa. 379, 87 Atl. 960 (impeaching a notary's certificate of ac-\
knowledgment) .
1905, Swiger v. Swiger, 58 W. Va. 119, 52 S. E. 23 (impeaching a certificate of acknowledg-
ment).
1909, Boring v. Ott, 138 Wis. 260, 119 N. W. 865 (setting aside a judgment on the ground
of perjury committed to obtain it; Marshall, J., diss.). 1910, Lemke v. Hage, 142 Wis.
178, 125 N. W. 440 (local usage affecting a contract). 1910, Lepley v. Anderson, 142 Wis.
668, 125 N. W. 433 (oral understanding nullifying a document).
So also for showing a deed absolute to be a mortgage only (under § 2437, ante) :
1908, Coiits V. Winston, 153 Cal. 686, 96 Pac. 357 (holding a deed absolute to be a mort-
gage).
1913, Davis v. Pursel, 55 Colo. 287, 134 Pac. 107.
1911, Patterson v. Patterson, 251 111. 153, 95 N. E. 1051 (that a deed was in effect a mort-
647
§2498 BY WHOM EVIDENCE IS PRESENTED
[Note 17 — ooniinued]
1913, Miller v. Mandel, 259 111. 314, 102 N. E. 760 (to show a deed, absolute on its face, to
have been subject to a collateral agreement in a lost document).
1906, Betts V. Betts, 132 la. 72, 106 N. W. 928.
1910, Schurz v. Schurz, 153 la. 187, 128 N. W. 944 (oral trust accompanying a deed
absolute).
1910, Schmidt v. Barclay, 161 Mich. 1, 125 N. W. 729.
1905, Stitt V. Rat Portage L. Co., 98 Minn. 52, 104 N. W. 561, sembk.
1904, Smyth ». Reed, 28 Utah 262, 78 Pac. 478.
1913, Hoover v. Bouffleur, 74 Wash. 382, 133 Pac. 602 (that a deed absolute in form is a
mortgage).
1913, Mittlesteadt v. Johnson, 75 Wash. 550, 135 Pac. 214 (that a deed absolute is a mort-
gage, in connection with collateral docimients).
1908, Hudkins v. Crim., 64 W. Va. 225, 61 S. E. 166 (oral trust of land).
Compare the rule for proving the precise terms of an oral contract or a lost will or deed
(ante, §§ 2097-2106).
[Note 18; add:]
1906, Dupuis V. Saginaw V. T. Co., 146 Mich. 151, 109 N. W. 413 (a quibbling opmion).
CorUra: 1905, McNeill v. Stitt, 2 Cal. App. 13, 82 Pac. 1121.
1905, McClelland v. BuUis, 34 Colo. 69, 81 Pac. 771.
1909, Chenoweth v. Burr, 242 111. 3ll2, 89 N. E. 1008.
1909, Warren Construction Co. v. Powell, 173 Ind. 207, 89 N. E. 857.
1905, Heald v. W. U. Tel. Co., 129 la. 326, 105 N. W. 588; and statutes cited ante, § 2034,
n. 1.
It is now said in Illinois that under some circumstances an instruction as to preponder-
ance is objectionable if it does not state that "the element of numbers should be consid-
ered by them with all the other things" ; 1907, Elgin J. & E. R. Co. v. Lawlor, 229 111. 621,
82 N. E. 407. But the vice of such a rule is the larger one of attempting to lay down rules
of law to bind the jury in their exclusive function of estimating the credibilities of the case
withmd any trammels of law. This is the growing danger of *the times for the law of evi-
dence, and it should be opposed wherever it appears.
§ 2500. Sanity ; (1) Testamentary and other Civil Causes.
[Note 1; add:]
but recent decisions leave the law of that State uncertain; the ambiguity of the term
"burden of proof" seems to be the cause.
1904, Branstrator v. Crow, 162 Ind. 362, 69 N. E. 668.
1907, Steinkuehler v. Wempner, 169 Ind. 154, 162, 81 N. E. 482 (changing the rule). 1909,
HofFbauar v. Morgan, 172 Ind. 273, 88 N. E. 337 (the burden is on the proponents in a
proceeding to probate, following Steinkuehler v. Wempner). 1910, Pepper v. Martin,
175 Ind. 580, 92 N. E. 777. 1914, Herring v. Watson, — Ind. — , 105 N. E. 900.
[Note 2; add:]
1903, Latour's Estate, 140 Cal. 414, 74 Pac. 441. 1904, McKenna's Estate, 143 Cal. 580,
77 Pac. 461.
1905, Credille v. Credille, 123 Ga. 673, 51 S. E. 628.
1906, Todd V. Todd, 221 111. 410, 77 N. E. 680. 1906, Waters v. Waters, 222 111. 26,
78 N. E. 1. 1912, Norton v. Clark, 253 111. 557, 97 N. E. 1079.
1906, Dunahugh's Will, 130 la. 692, 107 N. W. 925. 1908, Ross v. Ross, 140 la. 51,
117 N. W. 1105.
648
PRESUMPTIONS § 2501
[Note 2 — contintied]
Kan. : 1907, McConnell v. Keir, 76 Kan. 527, 92 Pac. 540 (good opinion, by Porter, J.).
1904, Henning v. Stevenson, 118 Ky. 318, 80 S. W. 1135.
1905, Gesell v. Baugher, 100 Md. 677, 60 Atl. 481.
1907, Mansbach's Estate, 150 Mich. 348, 114 N. W. 65.
1907, King V. Gilson, 206 Mo. 264, 104 S. W. 52.
1913, Bensberg v. Washington University, 251 Mo. 641, 158 S. W. 330.
1907, Powers' Estate, 79 Nebr. 680, 113 N. W. 198 (not clear).
1904, Hunt V. Phillips, 34 Wash. 362, 75 Pac. 970.
Compare also the cases cited under other rules for proof of insanity, ante, § 233 (prior
and subsequent insanity), § 1671 (inquisition of lunacy), post, § 2531 (presumption of
continuance).
[Note 3; add:]
1911, Pritchard v. Fowler, 171 Ala. 662, 55 So. 147 (insanity at past intervals does not cre-
ate a presumption of insanity at the time of a transaction).
1907, Hudson v. Hudson, 144 N. C. 449, 57 S. E. 162 (discussing the shifting of the burden
after evidence of prior insanity).
1909, Towner v. Towner, 65 W. Va. 476, 64 S. E. 732 (discussing the effect of an adjudica-
tion in committal proceedings).
§ 2501. Same : (2) Crimmal Causes.
[Note 1, in par. (1), First View; add:]
1910, Clemmons v. State, 167 Ala. 20, 52 So. 467 (noting changes of rule in this State).
1913, Roberson v. State, — Ala. — , 62 So. 837.
1914, State v. Johnson, — Kan. — , 140 Pac. 839.
1912, Com. V. Spencer, 212 Mass. 438, 99 N. E. 266.
1911, Adair v. State, 6 Okl. Cr. 284, 118 Pac. 416 (Davis v. U. S. followed).
1913, Matheson v. U. S., 227 U. S. 540, 33 Sup. 355 (Davis v. U. S. followed).
1909, State v. Brown, 36 Utah 46, 102 Pac. 641.
[Note 1, in par. (2), Second View; add:]
1913, Witty v. State, — Tex. Cr. — , 153 S. W. 1146.
[Note 1, in par. (3), Third View; add:]
1904, People v. Suesser, 143 Cal. 354, 75 Pac. 1093.
1907, People v. Casey, 231 111. 261, 83 N. E. 278.
1907, State v. Johnston, 118 La. 276,' 42 So. 935.
1905, State v. Austin, 71 Oh. 317, 73 N. E. 218.
1911, Com. V. Molten, 230 Pa. 399, 79 Atl. 638.
1904, State v. Quigley, 26 R. I. 263, 58 Atl. 905 (good opinion by Douglas, J.).
1904, State v. Clark, 34 Wash. 485, 76 Pac. 98 (good opinion by Mount, J., with a full
collection of cases from other jurisdictions).
1911, State V. Cook, 69 W. Va. 717, 72 S. E. 1025 (prior rulings affirmed).
1907, Duthey v. State, 131 Wis. 178, 111 N. W. 222.
[Note 1, last par.; add:]
1904, Parrish v. State, 139 Ala. 16, 36 So. 1012. 1904, Talbert v. State, 140 Ala. 96,
37 So. 78.
1905, AUams v. State, 123 Ga. 500, 51 S. E. 506.
1904, State v. Lyons, 113 La. 959, 37 So. 890 (rieconsidering prior cases).
649
§2502 BY WHOM EVIDENCE IS PRESENTED
§ 2502. Undue Influence and Fraud ; (1) Testamentary Execution.
[Note 1 ; add :] .
1910, MUler v. Carr, 94 Ark. 176, 126 S. W. 1068.
1906, Compher v. Browning, 219 111. 429, 76 N. E. 678.
1913, Kindberg's Will, 207 N. Y. 220, 100 N. E. 789 (burden is on contestant; explaiiiing
prior cases).
1905, Cowdry's Will, 77 Vt. 359, 60 AtL 141.
1905, Winn v. Itzel, 125 Wis. 19, 103 N. W. 220.
1913, Ball's Will, Ball v. Boston, 153 Wis. 27, 141 N. W. 8.
§ 2503. Same : (2) Confidential Relations, etc.
[Note 1; add:]
Eng. : 1875, Fulton v. Andrew, L. R., 7 H. L. 448, 471 (beneficiary drafting or framing a
will).
Can. : 1903, Stewart v. Walker, 6 Ont. L. R. 495, 510 (solicitor drawing a will and receiving
benefits under it).
1907, Mayrand v. Dussault, 38 Can. Sup. 460 (brother).
U. S. : 1913, Hawthorne ». Jenkins, — Ala. — , 62 So. 505 (parent and child).
U. S.: 1905, Morfey's Estate, 147 Cal. 495, 82 Pac. 57 (will).
1910, Broaddus v. Monroe, 13 Cal. App. 464, 110 Pac. 158 (mother and daughter).
1905, Re Birdseye, 77 Conn. 623, 60 Atl. Ill (will).
1913, Madre v. Gaskins, 39 D. C. App. 19 (friend).
1904, Weston v. Teufel, 213 111. 291, 72 N. E. 908 (beneficiary of a will). 1906, Compher
V. Browning, 219 111. 429, 76 N. E. 768 (testator and beneficiary). 1907, Sears v. Vaughan,
230 111. 572, 82 N. E. 881 (cases reviewed). 1908, Fish v. Fish, 235 111. 396, 85 N. E. 662
(nephew managing aunt's property). 1908, Gilmore v. Lee, 237 111. 402, 86 N. E. 568
(priest). 1908, Hudson v. Hudson, 237 111. 9, 86 N. E. 661. 1909, Hensan v. Cooksey,
237 111. 620, 86 N. E. 1107 (deed to a son). 1910, Dick n. Albers, 243 III. 231, 90 N. E. 683
(son). 1912, Yess v. Yess, 255 111. 414, 99 N. E. 687 (son as beneficiary; issue held proper
for the jury).
1907, Vannest v. Murphy, 136 la. 123, 112 N. W. 236 (son's fiduciary relation to mother).
1912, Shacklette v. Goodall, 151 Ky. 20, 151 S. W. 23 (uncle and nephew). 1913, Mc-
Dowell V. Edwards' Adm'r, 156 Ky. 476, 161 S. W. 634 (infirm person and custodian).
1906, Kennedy v. McCann, 101 Md. 643, 61 Atl. 625 (gift). 1908, Saxton v. Krumm, 107
Md. 393, 68 Atl. 1056 (mistress). 1908, Zimmerman v. Freshour, 108 Md. 115, 69 Atl.
796 (principal and agent). 1909, Reek's Ex'r v. Reck, 110 Md. 497, 73 Atl. 144 (deed by
father to son).
1906, Hill V. Hall, 191 Mass. 253, 77 N. E. 831 (attorney).
1906, Sperl's Estate, — Minn. —, 103 N. W. 502.
1913, Cornet v. Cornet, 248 Mo. 184, 164 S. W. 121 (brothers).
1908, Smith v. Moore, 149 N. C. 186, 62 S. E. 892 (mother-in-law and son-in-law). 1910,
In re Everett's Will, 163 N. C. 83, 68 S. E. 924 (brother as beneficiary and executor; pre-
sumption held applicable on the facts).
1909, McAdams v. McAdams, 80 Oh. 232, 88 N. E. 542 (father and son, the latter being an
attorney).
1907, Schuyler v. Stephens, 28 R. I. 506, 68 Atl. 311 (physician and patient).
§ 2504. Same : Fraudulent Conveyances against Creditors.
[Note 1; add:]
1905, Thompson v. Williams, 100 Md. 195, 60 Atl. 26.
650
PRESUMPTIONS §2507
§ 2505. Marriage ; (1) Consent from Cohabitation, etc.
[Note 1; add:]
1904, Re Shephard, 1 Ch. 456.
1904, Klenke v. Noonan, 118 Ky. 436, 81 S. W. 241.
1910, Bishop V. Brittain Inv. Co., 229 Mo. 699, 129 S. W. 668.
[Note 2; add:]
1912, Prin9e v. Edwards, 175 Ala. 632, 57 So. 714.
1906, Smith v. Fuller, — la. — , 108 N. W. 765.
1903, Shank v. Wilson, 33 Wash. 612, 74 Pac. 812.
[Note 3, par. 1 ; add:]
1909, Reifschneider v. Reifschneider, 241 111. 92, 89 N. E. 255 (marriage-ceremony in
Indiana).
1904, State v. Eggleston, 45 Or. 346, 77 Pac. 738 (adultery ; marriage by a justice).
§ 2506. Same : (2) Capacity, as affected by Intervening Divorce, etc.
[Note 1; add:]
1912, Roxbury ». Bridgewater, 85 Conn. 196, 82 Atl. 193 (prior marriage, without proof
of divorce).
1907, Murchison v. Green, 128 Ga. 339, 57 S. E. 709 (bigamous marriage, and death).
1905, Hoch »., People, 219 111. 265, 76 N. E. 356 (wife-murder).
1904, Scott's Adm'r «. Scott, — Ky. — , 77 S. W. 1122 (first and second wives claiming in-
surance benefits).
1906, State v. Rocker, 130 la. 239, 106 N. W. 645 (murder; defendant's wife as witness).
1906, Smith v. Fuller, — la. — , 108 N. W. 765 (dower ; plaintiff was married in 1872 to
S., who disappeared in three months, and in 1875 she was married to the intestate; the
second marriage presumed legal).
1905, Bowman v. Little, 101 Md. 273, 61 Atl. 223, 657, 1084 (collecting prior cases in this
State).
1909, Turner v. Williams, 202 Mass. 500, 89 N. E. 110 (action for the value of property
settled upon a deceased wife E. by the deceased husband J., induced by her false repre-
sentations that she was single ; E. .married N. in 1858 ; by 1870 he deserted ; in 1874 E.
married J. ; J. died in 1895 ; N. was heard from indefinitely as alive in 1888 ; held, that
the first burden was on the plaintiff, but that no presumption of singleness in 1874 could
be made ; and that the case was open on all the facts ; hence no verdict for the defendant
could be directed).
1908, Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51 (subsequent mar-
riage; whether an intervening divorce will be presumed).
1909, Maier v. Brock, 222 Mo. 74, 120 S. W. 1167 (five marriages).
1909, Sparks v. Ross, 75 N. J. Eq. 586, 73 Atl. 241. 1911, Vreeland v. Vreeland, 78 N. J.
Eq. 256, 79 Atl. 336 (alimony ; defence, void marriage, the plaintiff having a first husband
living and not divorced).
1910, Purdy v. State, 86 Nebr. 638, 126 N. W. 90 (adultery).
1912, Dunlap v. State, 126 Tenn. 415, 150 S. W. 86 (bigamy; presumption as to first wife's
§ 2507. Negligence and Accident ; (1) Contributory Negligence.
[Note 1; add:]
1908, Hainlin v. Budge, 56 Fla. 342, 47 So. 825.
1906, Diamond B. C. Co. v. Cuthbertson, 166 Ind. 290, 76 N. E. 1060.
651
§2507 BY WHOM EVIDENCE IS PRESENTED
[Note 1 — continued]
Mass. St. 1914, c. 553 (burden of proof of contributory negligence, placed on the defendant).
1905, Simms v. Forbes, 86 Miss. 412, 38 So. 546.
1904, Rapp V. Sarpy Co., 71 Nebr. 382, 98 N. W. 1042, 102 N. W. 242.
1909, Cincinnati, H. & D. R. Co. v. Frye, 80 Oh. 289, 88 N. E. 642.
§ 2508. Same : (2) Loss by Bailee.
[Note 1; add:]
Can. : 1908, Gremley v. Stubbs, 39 N. Br. 21 (bailee returning horse).
1911, Pratt V. Woddington, 23 Ont. 178 (death of horse in bailee's hands).
U. S. : 1904, Dieterle v. Bekin, 143 Cal. 683, 77 Pac. 664 (warehouseman of goods destroyed
by fire).
1909, Baltimore Refrigerating & H. Co. v. Kreiner, 109 Md. 361, 71 Atl. 1066 (cold storage).
1908, Yazoo & M. V. R. Co. v. Hughes, 94 Miss. 242, 47 So. 662 (warehouseman).
1912, Stone v. Case, 34 Okl. 5, 124 Pac. 960 (piano lease).
[Note 2; add:]
1904, Yazoo &c M. V. R. Co. v. Humphrey, 83 Miss. 721, 36 So. 154 (injury to passenger;
applying Rev. Code 1892, § 1808).
1903, Jones v. Kansas C. F. S. & M. R. Co., 178 Mo. 528, 77 S. W. 890 (employee).
1907, Harper F. Co. v. Southern Express Co., 144 N. C. 639, 57 S. E. 458 (subsequent
carrier).
1903, East Tennessee & W. N. C. R. Co. v. Lindamood, 111 Tenn. 457, 78 S. W. 99 (em-
ployee).
§ 2509. Same : (3) Defective Machines, Vehicles, and Apparatus.
[Text, p. 3556, 1. 1, from below; insert this quotation :]
1903, Lamar, J., in Chenall v. Palmer B. Co., 117 Ga. 106, 43 S. E. 443.
"There is a disposition to argue that every injury is the result of somebody's negligence,
but in many cases they are mere accidents or casualties for which, humanly speaking, no
one is to blame ; in others, the person injured is at fault ; in some, his negligence contributes
to the result ; in others, a fellow servant was to blame. In all such instances the maxim,
' Res ipsa loquitur,' affords little or no assistance to the jury, for, even supposing that the
injury itself proclaims negligence, it says nothing as to who was negligent, and fixes no basis
for determining whether the plaintiff, the defendant, a fellow servant, or some stranger
may not have been at fault. There are other cases where, when it is shown that the de-
fendant owned or controlled the thing which, when properly constructed, maintained, or
operated, did not, in the ordinary course of events, so act as to injure those near by, proof
that damage was caused by such thing affords reasonable evidence that the injury was
occasioned by want of ordinary care. Prima facie, that want of due care should be referred
to him under whose management and control the instrument of injury was found. The
jury would not be warranted in reasoning, in a strictly logical form : 'Buildings do not col-
lapse without negligence. This building collapsed. Therefore there was negligence,' —
for buildings do fall without any one being to blame, and as a result of flood and storm.
But ordinarily extraordinary and external causes may be treated as the exception, to be
established by the defendant. All that the plaintiff should be required to do in the first
instance is to show that the defendant owned, operated, and maintained, or controlled
and was responsible for the management and maintenance of, the thing doing the damage ;
that the accident was of a kind which, in the absence of proof of some external cause, does
not ordinarily happen without negligence. When he has shown this, he has cast a burden
on the defendant, who may then proceed to show that the accident was occasioned by vis
major, or by other causes for which he was not responsible."
652
PRESUMPTIONS § 2509
[Note 2; add:]
Canada, Dom.: 1906, Guardian F. & L. Ass. Co. v. Quebec R. L. & P. Co., 37 Can. Sup.
676 (fire from electric wires). 1910, Dominion Fish Co. v. Isbester, 43 Can. Sup. 637
(fire on shipboard).
Man.: 1910, Isbester v. Dominion Fish Co., 19 Man. 430, 442 (fire on a ship). 1913,
Schwartz v. Winnipeg E. R. Co., Man. C. C. A., 9 D. L. R. 708 (alighting from street-car).
.Ont: 1912, Carlisle v. Grand Trunk R. Co., Ont. H. C. J., 1 D. L. R. 130 (baggage injured
by explosion in baggage-room).
[Note 2; add:]
Ark. : 1912, Denton v. Mammoth S. E. L. & P. Co., 105 Ark. 161, 150 S. W. 572 (elec-
tric wires).
Cal.: 1907, Valente v. Sierra R. Co., 151 Cal. 534, 91 Pac. 481 (train collision). 1909,
Wyatt V. Pacific Electric R. Co., 156 Cal. 170, 103 Pac. 892 (street-car's abrupt start).
Colo. : 1905, Denver v. Spencer, 34 Colo. 270, 82 Pac. 590 (falling of a park stand). 1911,
Denver City T. Co. v. Hills, 50 Colo. 328, 116 Pac. 125 (passenger tripping in trolley-rope).
Del.: 1906, Wood v. Wilmington C. R. Co., 5 Pen. Del. 369, 64 Atl. 246 (electric shock on
a car-track).
Ga.: 1905, Central of Ga. R. Co. v. Bagley, 121 Ga. 781, 49 S. E. 780 (killing of animal
by a train).
III.: 1904, Illinois C. R. Co. v. Swift, 213 111. 307, 72 N. E. 737 (pile-driving machinery).
1905, Elgin A. & S. Traction Co. v. Wilson, 217 111. 47, 75 N. E. 436 (rule applied to a col-
lision between two cars of the defendant). 1907, Chicago U. Traction Co. v. Giese, 229
111. 260, 82 N. E. 232 (derailment). 1908, Greinke v. Chicago City R. Co., 234 111. 564,
85 N. E. 327 (passenger). 1908, Barnes v. Danville St. R. & L. Co., 235 111. 566, 85 N. E.
921 (passenger). 1909, O'Callaghan v. Dellwood Park Co., 242 111. 336, 89 N. E. 1005
(scenic railway).
Ind. : 1904, IndianapoUs St. R. Co. «. Schmidt, 163 Ind. 360, 71 N. E. 201 ("When an acci-
dent happens to a passenger, a presumption of negligence on the part of the carrier arises").
1911, Indiana Union T. Co. v. Maher, 176 Ind. 289, 95 N. E. 1012 (passenger in a collision).
la. : 1904, Fitch v. M. C. & C. L. Traction Co., 124 la. 665, 100 N. W. 618 (passenger).
1906, Huggard v. Glucose S. R. Co., 132 la. 724, 109 N. W. 475 (falling of an iron pipe).
1906, Croft V. Chicago, R. I. & P. R. (Co., 134 la. 411, 109 N. W. 723 (derailment). 1908,
Lunde v. Cudahy Packing Co., 139 la. 688, 117 N. W. 1063 (engine fly-wheel).
Kan. : 1908, Chicago, R. I. & P. R. Co. v. Brandon, 77 Kan. 612, 95 Pac. 573 (derailment).
1908, Shawnee L. & V. Co. v. Sears, — Kan. — , 95 Pac. 449 (electric light wire). 1913,
Root V. Cudahy P. Co., 88 Kan. 413, 129 Pac. 147 (elevator falling).
Ky.: 1911, Shinn Glove Co. v. Sanders, 147 Ky. 349, 144 S. W. 11 (water-tank falling).
1913, Corbin v. Benton, ^ Ky. — , 152 S. W. 241 (pavement accident).
Md.: 1905, State v. U. S. Railways & El. Co., 101 Md. 183, 60 Atl. 249 (passenger). 1912,
Baltimore & O. R. Co. v. Wilson, 117 Md. 198, 83 Atl. 248 (bridge collapsing). 1913,
Casparis Stone Co. v. Boncore, 121, Md. 449, 88 Atl. 250 (quarry-blasting).
Mass. : 1904, Hofnauer v. White Co., 186 Mass. 47, 70 N. E. 1038 (rule not applied to the
fall of a box from a shelf). 1904, Droney v. Doherty, 186 Mass. 205, 71 N. E. 547 (elevator
accident ; the accident held not sufficient evidence per se of negligence). 1904, Cooley v.
Collins, 186 Mass. 507, 71 N. E. 980 (rule not applied to let the plaintiff go to the jury on
an issue of employee's negligence, from the mere fact of a railroad torpedo being found at
a crossing). 1906, Byrne v. Boston W. H. 8s R. Co., 191 Mass. 40, 77 N. E. 696 (injury at
a printing machine). 1907, Saures v. Stevens Mfg. Co., 196 Mass. 543, 82 N. E. 694
(leakage of electricity).
1907, Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682 (spontaneous combustion of
goods). 1908, Minihan v. Boston Elevated R. Co., 197 Mass. 367, 83 N. E. 871 (elevated
car). 1909, Carroll v. Boston Elev. R. Co., 200 Mass. 527, 86 N. E. 793 (derailment).
1909, Beattie v. Boston Elev. R. Co., 201 Mass. 3, 86 N. E. 920 (explosion). 1909, Mc-
653
§2509 BY WHOM EVIDENCE IS PRESENTED
[Note 2 — continued]
Namara v. Boston & Maine R. Co., 202 Mass. 491, 89 N. E. 131 (blowmg off of roof of
a freight-car). 1910, Minihan v. Boston Elev. R. Co., 205 Mass. 402, 91 N. E. 414 (de-
railment). 1910, Martin v. Boston & N. St. R. Co., 205 Mass. 16, 91 N. E. 159 (explosion
on an electric car). 1912, Chiuccariello v. Campbell, 210 Mass. 532, 96 N. E. 1101 (pia-
chinery starting up without obvious cause). 1912, Trim v. Fore River S. B. Co., 211 Mass.
593, 98 N. E. 591 (fall of an angle iron). 1912, Carney v. Boston Elevated R. Co., 212
Mass. 179, 98 N. E. 605 (spark dropping from elevated electric road). 1913, Cook v.
Newhall, 213 Mass. 392, 101 N. E. 72 (machinery automatically starting). 1913, Killam
V. Wellesley & B. St. R. Co., 214 Mass. 283, 101 N. E. 374 (inference from the starting of
a car, as to its being started by authority). 1913, Poole v. Boston & M. R. Co., 216 Mass.
12, 102.N. E. 918 (train breaking apart).^ 1913, St. Louis v, Bay State St. R. Co., 216
Mass. 255, 103 N. E. 639 (electrocution of animal at street rail). 1914, Hull v. Berkshire
R. Co., — Mass. — , 104 N. E. 747 (trolley-pole breaking). 1914, Conley v. United Drug
Co., — Mass. — , 105 N. E. 975 (explosion of gas-tank).
Mick. ; 1891, Bamowski v. Helson, 89 Mich. 523, 50 N. W. 989, with note in 16 L. R. A. 33.
1909, Sewell v. Detroit United Ry., 158 Mich. 407, 123 N. W. 2 (collision).
Minn. : 1907, Waller v. Ross, 100 Minn. 7, 110 N. W. 252 (fall of an awning ; good opinion
by Jaggard, J.). 1909, Olson v. Pike, 107 Minn. 411, 120 N. W. 378 (scaffold-rope).
Miss. : 1909, Mobile, J. & K. C. R. Co. v. Kea, 96 Miss. 195, 50 So. 628 (Code 1906,
§ 1985, held not applicable on the facts) .
Mo. : 1904, Redmon v. Metropolitan St. R. Co., 185 Mo. 1, 84 S. W. 26 (passenger). 1904,
Allen V. St. Louis T. Co., 183 Mo. 411. 81 S. W. 1142 (passenger).
Nebr. : 1905, Omaha St. R. Co. v. Boesen, 74 Nebr. 764, 10^ N. W. 303 (derailment).
N. H. : 1911, Boucher v. Boston & M. R. Co., 76 N. H. 91, 79 Atl. 993 (railway car-window
falling).
N. J. : 1913, Levendusky v. Empu-e R. M. Co., 84 N. J. L. 698, 87 Atl. 338 (explosion of
boiler).
N. Y. : 1906, Duhme v. Hamburg-Amer. Packet Co., 184 N. Y. 404, 77 N. E. 386 (breaking
of a hawser). 1908, Cunningham v. Dody, 191 N. Y. 152, 83 N. E. 688 (highway). 1909,
Robinson v. Consol. Gas Co., 194 N. Y. 37, 86 N. E. 805 (scaffolding). 1909, Henson v.
Lehigh Valley R. Co., 194 N. Y. 205, 87 N. E. 85 (employee). 1909, Eaton v. N. Y. C. & H.
R. R. Co., 195 N. Y. 267, 88 N. E. 378 (injury by a passing train). 1909, Ferrick v. Eidlitz,
195 N. Y. 248, 88 N. E. 33 (fall of roofing). 1912, Hardie v. Boland Co., 205 N. Y. 336,
98 N. E. 661 (fall of chimney).
N. C. : 1904, Wbmble v. Merchants' G. Co., 135 N. C. 474, 47 S. E. 493 (elevator accident).
1905, Stewart v. Van D. C. Co., 138 N. C. 60, 50 S. E. 562 (elevator injury). 1905, Ross v.
Double S. C. Mills, 140 N. C. 115, 52 S. E. 121 (mill machinery; good opinion by Connor,
J.). 1905, Lyles v. Brannon C. Co., 140 N. C. 25, 52 S. E. 233 (soda-water tank explosion).
1908, Winslow v. Norfolk Hardwood Co., 147 N. C. 275, 60 S. E. 1130 (derailment of train).
Okl.: 1909, St. Louis & S. F. R. Co. v. Gosnell, 23 Okl. 588, 101 Pac. 1126 (passenger).
1913, Muskogee Electric T. Co. v. Mclntire, 37 Okl. 684, 133 Pac. 213 (derailment).
Or.: 1909, Crosbys. Portland B. Co., 53 Or. 496, lOlPac.204 (sagging trolley wire). 1909,
Chenoweth v. Southern Pacific Co., 53 Or. Ill, 99 Pac. 86 (method of rebuttal, discussed).
1909, Rogers v. Portland Lumber Co., 54 Or. 387, 102 Pac. 601 (sawmill).
Pa. : 1908, Ginn v. Pennsylvania R. Co., 220 Pa. 552, 69 Atl. 992 (passenger injured by
broken window). 1911, Rocap v. Bell Telephone Co., 230 Pa. 597, 79 Atl. 769 (electric
wire shock).
R. I.: 1905, Venbuve v. Lafayette W. Mills, 27 R. I. 89, 60 Atl. 770 (oily factory floor).
1905, Wilbur v. Rhode Island Co., 27 R. I. 205, 61 Atl. 601 (passenger). 1905, Edwards
e. Manufacturers' B. Co., 27 R. I. 248, 61 Atl. 646 (elevator).
S. C. : 1912, McLeod s. Atlantic Coast L. R. Co., 93 S. C. 71, 76 S. E. 19 (cattle on railroad
track).
U. 8. : 1891, Gleeson v. Virginia M. R. Co., 140 U. S. 435, 441, 11 Sup. 859 (landslide on a
654
PRESUMPTIONS § 2509
[Note 2 — continued]
railway track). 1905, Cincinnati, N. 0. & T. P. R. Co. v. South F. C. Co., 139 Fed. 528,
533 (fire started by a railroad collision). 1906, North Jersey St. R. Co. v. Purdy, 142 Fed.
955, C. C. A. (passenger). 1906, Southern P. Co. v. Cavin, 144 Fed. 348, C. C. A. (passen-
ger). 1909, Nebraska Bridge S. & L. Co. v. JeflFery, 8th C. C. A., 169 Fed. 609 (breaking
of a rope). 1909, Erie R. Co. v. Schomer, 6th C. C. A., 171 Fed. 798 (freightcar-handhold).
1909, Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 29 Sup. 270 (explosion of oil). 1912,
San Juan Light & T. Co. v. Requena, 224 U. S. 89, 32 Sup. 379 (death by contact with
wires). 1913, Sweeney v. Erving, 228 U. S. 233, 33 Sup. 416 (X-ray burns).
Utah: 1904, Wells v. Utah C. Co., 27 Utah 524, 76 Pac. 560. 1908, Dearden v. San Pedro
L. A. & S. L. R. Co., 36 Utah 147, 93 Pac. 271 (collision by a chain-break).
Va. : 1904, Norfolk R. &,L. Co. v. Spratley, 103 Va. 379, 49 S. E. 502 (electric wire). 1904,
Moore Lime Co. v. Johnston's Adm'r, 103 Va. 84, 48 S. E. 557 (stationary engine). 1912,
Washington-Virginia R. Co. v. Bouknight, 113 Va. 696, 75 S. E. 1032 (derailment).
Wash. : 1903, Towle v. Stimson M. Co., 33 Wash. 305, 74 Pac. 471 (sawmill). 1904, Allen
J). Northern P. R. Co., 35 Wash. 221, 77 Pac. 204 (railroad passenger getting on the car).
-1905, Williams v. Spokane F. & N. R. Co., 39 Wash. 77, 80 Pac. 1100 (passengprs in a col-
lision). 1905, Firebaugh v. SeattleEl. Co., 40 Wash. 658, 82 Pac. 995 (passenger on a street-
car). 1909, De Yoe v. Seattle Electric Co., 53 Wash. 588, 102 Pac. 446 (street railway).
1911, Lynch v. Ninemire P. Co., 63 Wash. 423, 115 Pac. 838 (vat explosion).
W. Va.: 1911, Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530, 70 S. E. 126 (bursting
of a wooden tank).
Wis. : 1905, Tiborsky v. Chicago, M. & St. P. R. Co., 124 Wis. 243, 102 N. W. 549 (raih-oad
obstructing the sidewalk).
Wyo. : 1912, Acme C. P. Co. v. Westman, 20 Wyo. 143, 122 Pac. 89 (bursting of a coal-bin).
[Note 4 ; add :]
Canada : Man. St. 1909, 9 Edw. VII, c. 19, § 2. 1913, Cochran v. Lloyd, N. Br. S. C,
11 D. L. R. 721 (under Consol. St. 1903, c. 94).
United States : 1909, Southern R. Co. v. Dickens, 161 Ala. 144, 49 So. 766.
1907, Southern R. Co. v. Thompson, 129 Ga. 367, 58 S. E. 1044.
1908, Osburn v. Oregon R. &,N. Co., 15 Ida. 478, 98 Pac. 627 (method of rebuttal discussed).
1Q12, Fodey v. Northern Pacific R. Co., 21 Ida. 713, 123 Pac. 835.
1907, Stewart v. Iowa C. R. Co. 136 la. 182, 113 N. W. 764.
1904, Atchison, T. & S. F. R. Co. ». Geiser, 68 Kan. 281, 75 Pac. 68. 1911, Tuttle v. Mis-
souri Pacific R. Co., 86 Kan. 28, 119 Pac. 370.
1904, Dyer v. Maine C. R. Co., 99 Me. 195, 58 Atl. 994.
1907, Dolph V. Lake Shore & M. S. R. Co., 149 Mich. 278, 112 N. W. 981. 1907, Clark v.
Grand Trunk W. R. Cb., 149 Mich. 400, 112 N. W. 1121.
1906, Continental Ins. Co. v. Chicago & N. W. R. Co., 97 Minn. 467, 107 N. W. 548 (best
opinion, by Jaggard, J., under the rule of prima fade negligence).
1908, Grimm v. Omaha El. L. & P. Co., 79 Nebr. 395, 114 N. W. 769.
1911, Kornegay v. Atlantic C. L. R. Co., 154 N. C. 389, 70 S. E. 731. 1911, Maguire v.
Seaboard A. L. R. Co., 154 N. C. 384, 70 S. E. 737.
1904, Anderson v. Oregon R. Co., 45 Or. 211, 77 Pac. 119.
1913, Iowa Cent. R. Co. v. Hampton E. L. & P. Co., 8th C. C. A., 204 Fed. 961 (construing
Iowa Code 1897, § 2056).
1912, Northwestern M. F. Ass'n v. Northern P. R. Co., 68 Wash. 292, 123 Pac. 468. 1911,
Thorgrimsen v. Northern Pacific R. Co., 64 Wash. 500, 117 Pac. 406.
[Note 5, par. 1; add:]
Fla. Gen. St. 1906, § 3148 (for personal injury, the presumption is "in all cases against the
railroad company"). 1913, Hammond v. Jacksonville El. Co., 66 Fla. 145, 63 So. 709 (ap-
plying the statute).
655
§2509 BY WHOM EVIDENCE IS PRESENTED
[Note 5 — continued]
1906, Illinois C. R. Co. v. Stanley, — Ky. — 96 S. W. 846.
Miss. Code 1905, § 1985 (presumption to arise for any personal injury inflicted by "the
running of the locomotive or cars").
1913, Alabama & V. R. Co. v. Thornhill, — Miss. — , 63 So. 674 (examining the decisions
under the statute).
N. C. Rev. 1905, § 2645 (like Code 1883, § 2326). 1908, Cox v. Aberdeen 8s A. R. Co.,
149 N. C. 117, 62 S. E. 884.
[Text, p. 3558, 1. 2, after "live-stock"; inseH:]
, or the doing of any personal injury,
[Note 5, par. 2 ; add :]
1906, Williams v. Sleepy H. M. Co., 37 Colo. 62, 86 Paic. 337 (employee's knowledge of
danger).
"1907, National Biscuit Co. v. Wilson, 169 Ind. 442, 82 N. E. 916 (elevator).
1907, Curtin v. Boston Elev. R. Co., 194 Mass. 260, 80 N. E. 522.
1906, Fearington v. Blackwell D. T. Co., 141 N. C. 80, 53 S. E. 662 (eWator). 1906, Fitz-
gerald V. Southern R. Co., 141 N. C. 530, 54 S. E. 391 (loading coal). ,
1905, Northern Pacific R. Co. v. Dixon, 139 Fed. 737, C. C. A. (collision). 1905, Shandrew
V. Chicago St. P. M. & O. R. Co., 142 Fed. 320, 323, C. C. A.
§ 2510. Same : (4) Death by Violence.
[Note, 1; add:]
1903, Pomfret v. Lancashire k Y. R. Co., 2 K. B. 718.
1911, Grand Trunk R. Co. v. Griffith, 45 Can. Sup. 380 (death at a crossing).
1904, Billing v. Semmens, 7 Ont. L. R. 340 (factory machine).
1906, Little Rock R. & E. Co. v. Green, 78 Ark. 129, 93 S. W. 752.
1913, Chiara v. Stewart Mining Co., 24 Ida. 473, 135 Pac. 245 (mine employee).
1906, Chicago & A. R. Co. v. Wilson, 225 111. 50, 80 N. E. 56. 1909, CoUison v. Illinois Cen-
tral R. Co., 239 111. 532, 88 N. E. 251. 1909, Wilkinson v. JEtna. Life Ins. Co., 240 III. 205,
88 N. E. 550. 1914, Newell v. Cleveland C. C. & St. L. R. Co., 261 111. 505, 104 N. E. 223.
1910, Grand Trunk Western R. Co. v. Reynolds, 175 Ind. 161, 92 N. E. 733.
1905, Rietveld v. Wabash R. Co., 129 la. 249, 105 N. W. 515. 1906, Christopherson v.
Chicago, M. & St. P. R. Co., 135 la. 409, 109 N. W. 1077. 1906, Ellis v. Republic Oil Co.,
133 la. 11, 110 N. W. 20 toil explosion). 1910, Korah v. Chicago R. I. & P. R. Co. 149 la.
711, 128 N. W. 529. 1913, Platter v. Minneapolis & St. Louis R. Co., — la. — , 143 N. W.
992.
1904, Kansas C. L. R. Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469. 1906, Atchison T. & S. F.
R. Co. V. Baumgartner, 74 Kan. 148, 85 Pac. 822.
1914, O'Brien v. Boston Elev. R. Co., — Mass. — , 104 N. E. 442. 1914, Chester v. Murt-
feldt Co., 216 Mass. 537, 104 N. E. 483. 1914, McCuUock v. Needham, — Mass. — , 104
N. E. 484.
1909, Nilson v. Chicago B. & Q. R. Co., 84 Nebr. 595, 121 N. W. 1128.
1905, Stevens v. United G. &. E. Co., 73 N. H. 159, 60 Atl. 848. 1909, Gibson v. Maine C. R.
Co., 75 N. H. 342, 74 Atl. 589. 1913, Greenwood v. Boston & M. R. Co., — N. H. —
88 Atl. 217 (inference repudiated).
1909, Kunkel v. MinneapoUs St. P. & S. S. M. R. Co., 18 N. D. 367, 121 N. W. 830.
1913, Worthington v. Elmer, 6th C. C. A., 207 Fed. 306 (railroad brakeman).
1912, Lewis v. Rio Grande W. R. Co., 40 Utah 483, 123 Pac. 97 (death at a grade crossing).
1908, Shum's Adm'x v. Rutland R. Co., 81 Vt. 186, 69 Atl. 945 (reviewing cases).
1904, Newport N. P. Co. v. Beaumeister, 102 Va. 677, 47 S. E. 821.
656
PRESUMPTIONS § 2511
[Note 2; add:]
1906, Grand Lodge v. Banister, 80 Ark. 190, 96 S. W. 742.
1905, Preferred Ace. Ins. Co. v. Fielding, 35 Colo. 19,' 83 Pac. 1013.
1909, Mittelstadt v. Modern Woodmen, 143 la. 186, 121 N. W. 803. 1909, Gray v. Chicago
R. I. & P. R. Co., 143 la. 268, 121 N. W. 1097. 1909, Van Norman v. Modern Brotherhood,
143 la. 536, 121 N. W. 1080. 1913, Allen ». Travelers' Protective Ass'n, — la. — , 143 N. W.
574, 585, per Deemer, J.
1907, Lindahl v. Supreme Court I. O. F., 100 Minn. 87, 110 N. W. 359 (suicide). 1907,
Kornig v. Western Life Ind. Co., 102 Minn. 31, 112 N. W. 1039.
1903, Stevens v. Continental C. Co., 12 N. D. 463, 97 N. W. 862.
1910, Bircher v. Modern Brotherhood, 25 S. D. 325, 126 N. W. 583.
1905, Starr v. Mtna. L. Ins. Co., 41 Wash. 199, 83 Pac. 113 (accident). "^
§ 2511. Crimes : (1) Innocence, Malice, Intent, etc.
[Note 1; add:]
This little bundle of humor (" Scintillac Juris ") is now known to be of Mr. Justice Darling's
authorship, and has reached its sixth edition (1914; London, Stevens & Haynes).
[Notes, par. 1,1. 20; add:]
1910, Holt V. U. S., 218 U. S. 245, 31 Sup. 2 (the trial Court's refusal to give an instruction
stating that "this presumption of innocence is evidence in the defendant's favor," held not
improper, citing Agnew v. U. S., and the above text; the statement was said to have "a
tendency to mislead"). 1912, KeUher v. U. S., C. C. A., 193 Fed. 8 (Holt v. U. S., 218 U. S.
253, followed, not Coffin v. U. S.).
[NoU3, par. 2,1. 2; add:]
1906, Williams v. State, 144 Ala. 14, 40 So. 205.
1910, Bailey v. State, 168 Ala. 4, 53 So. 296, 390 (per Bailey, J., diss.).
1904, People v. Moran, 144 Cal. 48, 77 Pac. 777.
1908, McDuffee v. State, 55 Fla. 125, 46 So. 721.
1907, Com. V. Sinclair, 195 Mass. 100, 80 N. E. 799 ("The presumption of innocence is not
a matter of evidence").
1910, Berry v. State, 4 Okl. Cr. 202, 111 Pac. 676. 1910, Culpepper v. State, 4 Okl. Cr. 103,
111 Pac. 679 (careful opinion, by Richardson, J., approving Professor Thayer's demon-
stration of the fallacy, and containing all the reasoning on the subject). 1911, Adair v.
State, 6 Okl. Cr. 284, 118 Pac. 416 (Culpepper v. State followed).
1904, State v. Quigley, 26 R. I. 263, 58 Atl. 905 ("when the evidence works conviction be-
yond a reasonable doubt, the presumption of innocence withdraws its protection").
[Note 3, par. 2 ; at the end, add:]
1911, Freeman v. Blount, 172 Ala. 655, 55 So. 293.
1912, Webb v. State, 11 Ga. App. 850, 76 S. E. 990.
1905, Everett J). People, 216 111. 478, 75 N. E. 188 (Coffins. U. S. approved). 1906,Flynn v.
People, 222 111. 303, 78 N. E. 617 (a fine word-juggle). 1910, People v. Ambach, 247 111.
451, 93 N. E. 310 (an instruction which does not make plain that the presumption of in-
nocence continues in every stage is erroneous).
1903, State v. Brady, 121 la. 561, 97 N. W. 62. 1903, State v. Linhoff, 121 la. 632, 97 N. W.
77.
1907, State v. Wolfley, 75 Kan. 406, 93 Pac. 337.
1904, U, S. V. Griego; 12 N. M. 84, 75 Pac. 30.
1913, Monaghan v. State, — Okl. Cr. App. — , 134 Pac. 77.
1907, Thomas v. U. S., Taggart v. U. S., 8th C. C. A., 156 Fed. 897, 913.
657
§2511 BY WHOM EVIDENCE IS PRESENTED
[Note 3 — continued]
1905, Cowdry's Will, 77 Vt. 359, 60 Atl. 141 (where Rowell, C. J., even after referring to
Professor Thayer's criticism of the Coffin Case, seems unable to make up his mind on the
subject and decides to let the criticised rule remain, "as it is so embedded in our law" (?)
and "works well enough in practice")-
1906, State v. Mayo, 42 Wash. 540, 85 Pac. 251.
See an interesting note, upholding a median view, in the Columbia Law Review (1908),
VIII, 127.
[Note 4, par. 1, as to deadly weapons; add :]
1912, Welty v. State, — Ind. — 100 N. E. 73.
1911, State «. Truskett, 85 Kan. 804, 118 Pac. 1047 (careful opinion, by Benson, J., upon
the nature of the presumption). '
1910, Com. V. Greene, 227 Pa. 86, 75 Atl. 1024.
[Note 4, par. 2 ; add .•]
1904, State v. Poe, 123 la. 118, 98 N. W. 587.
Nor from any other conduct of the defendant evidencing consciousness of guilt:
1909, Mills V. State, 133 Ga. 155, 65 S. E. 368 (virtually reading P. C. 1895, § 989, out of
the law; here, the accused's failure to produce evidence).
§ 2512. Same : (2) Self- Defence, Alibi, etc.
[Note 1 ; add ;]
Accord: 1911, State v. Leakey, 44 Mont. 354, 120 Pac. 234.
1910, Prince v. U. S., 3 Okl. Cr. 706, 109 Pac. 241 (for Arkansas law). 1911, Tinker v. State,
5 0kl. Cr. 584, 115 Pac. 473.
1912, State v. Dewey, — Utah — , 127 Pac. 275.
Cmtra: 1908, Com. v. Deitrick, 221 Pa. 7, 70 Atl, 275.
[Note I; add:]
1907, McEwen v. State, 152 Ala. 38, 44 So. 619 (former instructions reviewed).
1904, Anderson v. Terr., 9 Ariz. 50, 76 Pac. 636.
1905, Zipperian v. People, 33 Colo. 134, 79 Pac. 1018 (prosecution has the burden en-
tirely).
1905, State v. Morris, 128 la. 717, 105 N. W. 213.
1911, State V. Ardoin, 128 La. 14, 54 So. 407 (the burden is not on the accused).
1907, State v. Hazlet, 16 N. D. 426, 113 N. W. 374 (careful examination of the cases, in the
light of the peculiar State statute).
1908, Com. V. Palmer, 222 Pa. 229, 71 Atl. 100. 1911, Com. «. Colandro, 231 Pa. 343,.
80 Atl. 571 (the defendant must prove by a preponderance).
1904, State v. McDaniel, 68 S. C. 304, 47 S. E. 384. v
[Note^; add:]
1906, Barton v. Terr., 10 Ariz. 68, 85 Pac. 730.
1911, State V. Brauneris, 84 Conn. 222, 79 Atl. 70.
1908, McDuffee v. State, 55 Fla. 125, 46 So. 721.
1908, Smith v. State, 4 Ga. App. 807, 61 S. E. 737.
1905, Flanagan v. People, 214 111. 170, 73 N. E. 347. 1905, Briggs ». People, 219 111. 330.
76 N. E. 499 (phrasing of instruction considered).
1904, State v. Worthen, 124 la. 408, 100 N. W. 330 (peculiar rule).
1908, State «. Nelson, 17 N. D. 13, 114 N. W. 478.
1903, Legere v. State, 111 Tenn. 368, 77 S. W. 1059.
658
PRESUMPTIONS § 2513
[Note 4) add:] " , '
. Duress should be likewise treated :
1911, State V. Sappienza, 84 Oh. 63, 95 N. E. 381 (duress "is an affirmative defence," to be
established by a preponderance of evidence).
§ 2513. Same : (3) Possession of Stolen Goods.
[Note 3; add:]
1904, R. V. Theriault, 11 Br. C. 117.
1909, Douglass v. State, 91 Ark. 492, 121 S. W. 923. 1909, Wiley v. State, 92 Ark. 586,
124 S. W. 249.
1905, People v. Davis, 147 Cal. 346, 81 Pac. 718.
1904, State v. Caxr, 4 Del. 523, 57 Atl. 370.
1908, McDonald v. State, 56 Fla. 74, 47 So. 485. 1909, Bass v. State, 58 Fla. 1, 50 So. 531.
1908, State v. Peck, 14 Ida. 712, 95 Pac. 515. 1909, People v. Deluce, 237 lU. 541, 86 N. E.
1080. 1908, Mason v. State, 171 Ind. 78, 85 N. E. 776.
1904, State ». Raphael, 123 la. 452, 99 N. W. 151. 1909, State v. Carter, 144 la. 280, 121
N. W. 694. 1911, State v. Kimes, 152 la. 240, 132 N. W. 180. 1913, State v. Clark, — la.
— , 140 N. W. 821.
1911, Pittsburg C. C. & St. L. R. Co. v. Austin's Adm'r, 141 Ky. 722, 133 S. W. 780 (personal
injury law).
1904, State v. Drew, 179 Mo. 315, 78 S. W. 594. 1906, State v. Wright, 199 Mo. 161, 97
S. W. 874. 1909, Rogers v. Wilson, 220 Mo. 213, 119 S. W. 369. 1910, State v. Court, 225
Mo. 609, 125 Mo. 451. 1910, State v. Hammons, 226 Mo. 604, 126 S. W. 422.
1906, Terr. v. Livingston, 13 N. M. 318, 84 Pac. 1021.
1904, State v. Lax, 71 N. J. L. 386, 59 Atl. 18.
1913, State v. Anderson, 162 N. C. 671, 77 S. E. 238.
1913, State v. Schonberg, 24 N. D. 532, 140 N. W. 105.
1908, Slater v. U. S., 1 Okl. Cr. 275, 98 Pac. 110. 1909, Cox. v. Terr., 2 Okl. Cr. 668, 104 Pac. 378.
1909, State v. Minnick, 54 Or. 86, 102 Pac. 605.
1909, State v. Winter, 83 S. C. 153, 65 S. E. 209.
1911, State V. Potello, 40 Utah 56, 119 Pac. 1023 (construing Comp. L. 1907, § 4355).
1911, State V. Hatfield, 65 Wash. 550, 118 Pac. 735.
[Note 6, 1. 6; add:]
1909, Sorenson v. U. S., 8th C. C. A., 168 Fed. 785 (possession of a watch by the defendant's
wife, not admitted).
[Note 7; add:]
1905, State v. Richmond, 186 Mo. 71, 84 S. W. 880 (declaring both the Guild and the Bulla
cases to be correct 1).
[Note 8; add:]
1906, Gunter v. State, 79 Ark. 432, 96 S. W. 181 (burglary).
1904, People v. Lang, 142 Cal. 482, 76 Pac. 232.
1907, Miller v. People, 229 111. 376, 82 N. E. 391.
1903, State v. Brady, 121 la. 561, 97 N. W. 62. 1913, State v. Stutches, — la. — , 144
N. W. 597.
1909, State v. Sparks, 40 Mont. 82, 105 Pac. 87.
1905, Winsky v. State, 126 Wis. 99, 105 N. W. 480.
The same question arises as to a presumption of fabrication or of knowledge, from the
utterance or possession of a forged instrument :
1907, State v. Waterbury, 133 la. 135, 110 N. W. 328.
1903, State v. Psycher, 179 Mo. 140, 77 S. W. 836.
659
§2513 BY WHOM EVIDENCE IS PRESENTED
[Noted; add:]
1911, State V. Kelly, 22 N. D. 5, 132 N. W. 223 (liquor).
§ 2514. Same : (4) Capacity (Infancy, etc.).
[NoteS; add:]
1906, State v. Fisk, 15 N. D. 589, 108 N. W. 485 (rape; under the statute, the State must
show criminal intent, for a child between 7 and 14 ; collecting the authorities at common
law).
[Note 5; add:]
Contra: 1904, State v. Corrivau, 93 Minn. 38, 100 N. W. 638.
[Note 6; add:]
1906, State v. Harvey, 130 la. 394, 106 N. W. 938 (arson).
1904, Com. V. Adams, 186 Mass. 101, 71 N. E. 78.
§ 2515. Ownership ; (1) Possession of Land, etc.
[NoU2; add:]
1906, Glos v: Ault, 221 111. 562, 77 N. E. 939 (possession under claim of ownership being
■prima faoie evidence of ownership, a deed from such a possessor may be ■prima facie evidence
of ownership).
[Note 3, par. 1 ; add :]
E.g., Richmond v. Jones, 1910, HI Va. 214, 68 S. E. 181 (ejectment; defendant set up a
prior grant ; burden of proof held to be on plaintiff throughout).
[Note 4l, par. 1 ; add :]
1906, Roberts v^ Ringemann, 145 Ala. 678, 40 So. 81 (personalty levied on).
1905, Vinson v. Knight, 137 N. C. 408, 49 S. E. 891 (trover).
It seems practical to hold, as Courts are more inclined to do, that the operation of railroad
premises may be sufficient evidence of ownership or control of the rolling stock : 1904,
Chicago & E. I. R. Co. v. Schmitz, 211 111. 446, 71 N. E. 1050.
1904, Spink v. N. Y. N. H. & H. R. Co., 26 R. 1. 115, 58 Atl. 499 (operation of locomotives
raises a presumption of ownership or at least control). Compare the admissibility of rep-
tiiation for this purpose (flnte, § 1587).
§ 2516. Same : (2) Possession of Negotiable Instrument.
[Note 1 ; add :]
1910, King V. Bellamy, 82 Kan. 220, 108 Pac. 118.
1912, Reed v. McCready, 170 Mich. 532, 136 N. W. 488.
1904, Huntley s. Hutchinson, 91 Minn. 244, 97 N. W. 971.
1905, Cuyler v. Wallace, 183 N. Y. 291, 76 N. E. 1 (insurance policy).
1905, Tyson v. Joyner, 139 N. C. 69, 51 S. E. 803 (indorsed in blank).
§ 2517. Payment ; (1) Lapse of Time.
[Note 1 ; add :]
1909, Roach v. Cox, 160 Ala. 425, 49 So. 578 (surety).
1910, Jenkins v. Andover Theol. Seminary, 205 Mass. 376, 91 N. E. 552 (mortgagor's pos-
session for 20 years).
1905, Ayres v. Ayres, 69 N. J. Eq. 343, 60 Atl. 422 (note).
660
PRESUMPTIONS § 2520
[Note 1 — continued]
1906, Conklmg v. Weatherwax, 181 N. Y. 258, 73 N. E. 1028 (legacy).
1911, Wright V. Hull, 83 Oh. 385, 94 N. E. 813 (receipt).
1905, Allison's Ex'r v. Wood, 104 Va. 765, 52 S. E. 559 (bond).
1911, Holway v. Sanborn, 145 Wis. 151, 130 N. W. 95 (rebutting evidence, considered).
§ 2518. Same : (2) Possession of Instrument or Receipt.
[Note 2; add:]
1904, Sarraille v. Calmon, 142 Cal. 651, 76 Pac. 497 (note).
§ 2520. Execution of Deeds (Delivery, etc.).
[Note 3 ; add, under Accord :]
1905, Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244 (here considering the contrary presump-
tion ot non-delivery from grantor's possession after death).
1908, Walker v. Warner, 31 D. C. App. 76, 86.
1908, Potter v. Bairinger, 236 111. 224, 86 N. E. 233. 1911, Schroeder v. Smith, 249 lU.
674, 94 N. E. 969.
1906, Shetler v. Stewart, 133 la. 320, 107 N. W. 310 (deed; contrary presumption from
grantor's possession, considered).
1906, Amos-Richia v. Northwestern M. L. Ins. Co., 143 Mich. 684, 107 N. W. 707 (insurance
policy; presumption not raised on the facts). ,
1909, Wilson v. Wilson, 85 Nebr. 167, 122 N. W. 856.
1906, Pierson v. Fisher, 48 Or. 223, 85 Pac. 621.
1906, Webb v. Ritter, 60 W. Va. 193, 54 S. E. 484 (deed).
1913, Butts V. Richards, 152 Wis. 318, 140 N. W. 1.
[Note 3 ; add a new par. 3 :]
Where a deed is found in the granior's possession, the presumption is the opposite :
1911, Cassidy v. Holland, 77 S. D. 287, 130 N. W. 771.
For the rule as to the- presumption of delivery to aid a voluntary deed between family
members or confidential parties, see the following : 1905, Henry v. Henry, 215 111. 205, 74
N. E. 126 (deed found in the grantor's custody after death). 1905, Coleman v. Coleman,
216 111. 261, 74 N. E. 701 ("The law presumes more in favor of the delivery of deeds in case
of voluntary settlements, especially when made to infants, than it does in ordinary cases of
bargain and sale"). 1905, Thompson v. Calhoun, 216 111. 161, 74 N. E. 775 (similar^ here
a deed to an adult son).
[Note 4, par. 1 ; add:]
1906, Hanchett v. Haas, 219 111. 546, 76 N. E. 845. 1906, Calkins v. Calkins, 220 111. Ill,
77 N. E. 102. 1908, Blankenship v. Hall, 233 111. 116, 84 N. E. 192. 1911, Schroeder v.
Smith, 249 111. 574, 94 N. E. 969. 191 1, Spencer v. Razor, 251 111. 278, 96 N. E. 300.
1905, Webb v. Webb, 130 la. 457, 104 N. W. 438. 191 1, Stiles ». Beed, 151 la. 86, 130 N. W.
376. 1913, Tucker v. Glew, — la. — , 139 N. W. 565.
1907, Pentico v. Hays, 75 Kan. 76, 88 Pac. 738.
1906, Collings «. Collings, — Ky. — , 92 S. W. 577.
1904, Peters v. Berkemeier, 184 Mo. 393, 83 S. W. 747. 1910, Chambers v. Chambers,
227 Mo. 262, 127 S. W. 86.
1865, Younge v. Guilbeau, 3 Wall. 636.
[Note 4, par. 2; add:]
1909, Hansen v. Owens, 132 Ga. 648, 64 S. E. 800 (where a recorded deed bears the purport-
ing signature of one proved to have been an illiterate, but the authority of the illiterate to
661
§2520 BY WHOM EVIDENCE IS PRESENTED
[Note 4 — continued]
another person in law might make the signature valid, the presumption of genuineness
ceases ; on the evidence the jury decides).
So also the statutory certificate of acknowledgment alone :
1907, Tucker v. Helgren, 102 Minn. 382, 113 N. W. 912 (giving effect to Rev. L. 1905,
§4710).
Compare here the rule for admissibility of certified copies and certificates of acknowledg-
ment (ante, §§ 1676, 1680).
For the burden of proof under statutes requiring a sworn denial of execution, see post,
§ 2596, ante, § 2146.
\
[Note 5; add:]
1910, People v. Campbell, 160 Mich. 108, 125 N. W. 42 (note).
1909, Barden v. Hornthal, 151 N. C. 8, 65 S. E. 513 (not decided ; whether an indorsement
is presumed to have been of the date df the note's execution).
1905, Leonard v. Fleming, 13 N. D. 629, 102 N. W. 308.
[Note 6; add:)
1913, CaUigan v. Calligan, 259 111. 52, 102 N. E. 247.
1908, Conway v. Rock, 139 la. 162, 117 N. W. 273.
But not the time of affixing a seal, unless recited : 1910, In re Fine, 198 N. Y. 209,
91 N. E. 587 (citing cases).
[Text, p. 3567, par. (6); add:]
The authority of an agent, purporting to execute for his principal, is not pre-
sumed.'"
«'■ 1888, Fadner v. Hibler, 26 111. App. 639. 1890, Darst v. Doom, 38 111. App. 397.
1877, Swaine v. Marriott, 28 N. J. Eq. 589.
1905, McClung v. McPherson, 47 Or. 73, 82 Pac. 13. Otherwise for an ancient document
(ante, § 2144).
Compare the effect of an admission in such cases (ante, § 2134).
§ 2522. Same : (4) Lost Grant, etc.
[Note 2; add:]
1903, Flanagan v. Mathieson, 70 Nebr. 223, 97 N. W. 287.
1913, Oregon & Cal. R. Co. v. Grubissich, 9th C. C. A., 206 Fed. 577 (raiboad land in Oregon ;
the above statement approved by Gilbert, J., for the majority).
1905, Logan v. Ward, 58 W. Va. 366, 52 S. E. 398 (land).
§ 2523. Same: (5) Will (Execution and Revocation).
[Note 1 ; add:]
The presumption of genuineness from the age and custody of an ancient document may siso
apply to wills (ante, § 2145).
[Note 2; add:]
1913, St. Mary's Home v. Dodge, 257 111. 518, 101 N. E. 46.
1910, Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73.
1904, Colbert's Estate, 31 Mont. 461, 78 Pac. 971, 80 Pac. 248.
1905, Williams v. Miles, 73 Nebr. 193, 102 N. W. 482.
1903, Stevens v. Stevens, 72 N. H. 360, 56 Atl. 916.
662
PRESUMPTIONS § 2527
[Note 2 — continued]
1911, Cunnion's Will, 201 N. Y. 123, 94 N. E. 648.
1904, Gfeller v. Lappe, 208 Pa. 48, 57 Atl. 59.
1912, Zeigenhagen's WiU, 148 Wis. 382, 134 N. W. 905.
[Note 3; add:]
Pbr the burden of proof under the Ohio statute as to lost wills probated by an established copy,
see the following :
J905, Hutson v. Hartley, 72 Oh. 262, 74 N. E. 197. ,
[lead, p. 3569, last line of § 2523 ; add a new paragraph :]
(c) Intestacy upon death is presumed.*
^ 1911, Sielbeck v. Grothman, 248 111. 435, 94 N. E. 67.
§ 2525. Same : (7) Alteration of Documents.
[Note 1; add:]
1905, Crediton v. Exeter, L. R. 2 Ch. 455, 458.
1910, R. V. Graves, 21 Ont. 329, 340 (record of conviction).
1903, Landt v. McCullough, 206 111. 214, 69 N. E. 107 (lease). 1905, Merritt v. Dewey,
218 111. 599, 75 N. E. 1066 (note). 1906, Gage v. Chicago, 225 111. 218, 80 N. E. 127 (cer-
tified copy of an ordinance).
1905, Thomas v. Thomas, 129 la. 159, 105 N. W. 403.
1908, Scott V. Thrall, 77 Kan. 688, 93 Pac. 563 (will; good opinion by Benson, J.).
1904, Wheadon v. Turregano, 112 La. 931, 36 So. 808 (lease).
1909, Foss !). McRae, 105 Me. 140, 73 Atl. 827 (careful opinion).
1904, Graham v. Middleby, 185 Mass. 349, 70 N. E. 416 (bond).
1907, Colby v. Foxworthy, 80 Nebr. 239, 114 N. W. 174 (note).
1912, Wicker v. Jones, 159 N. C. 102, 74 S. E. 801 (deed; careful opinion by Allen, J.).
1911, Comog V. Wilson, 231 Pa. 281, 80 Atl. 174 (note).
1905, Philip Carey Mfg. Co. v. Watson, 58 W. Va. 189, 52 S. E. 515 (contract).
§ 2526. Gifts and Trusts, etc.
[NoU2; add:]
1905, Hoon v. Hoon, 126 la. 391, 102 N. W. 105 (conveyance).
§ 2527. Legitimacy.
[Note 3, par. 1 ; add:]
1904, Canaan v. Avery, — Conn. — , 58 Atl. 509 (the wife's adultery during the gestation-
period cannot be shown).
1905, Godfrey v. Rowland, 16 Haw. 377, 502.
1912, People v. Case, 171 Mich. 282, 137 N. W. 55.
.1906, Breidenstein v. Bertram, 198 Mo. 328, 95 S. W. 828 (Rev. St. 1899, § 2917, providing
that subsequent marriage and the recognition of the child legitimates it, semble, does not
make such recognition conclusive).
1911, Powell V. Fowler, 84 Oh. 165, 95 N. E. 660 (bastardy filiation proceedings ; modified
rule adopted).
1904, Kennington v. Catoe, 68 S. C. 470, 47 S. E. 719 (legitimacy of a son born 11 months
after marriage; unchaste conduct with other men before marriage and after birth, ex-
cluded) i
1911, Osborne v. Ramsay, C. C. A., 191 Fed. 114 (presumption applied).
663
§2528 BY WHOM EVIDENCE IS PRESENTED
§ 2528. Chastity ; Child Bearing.
[Note 1 ; add, under Accord :]
1904, Caldwell v. State, 73 Ark. 139, 83 S. W. 929 (seduction). 1905, Rucker v. State,
77 Ark. 23, 90 S. W. 151 (seduction).
[Note 2; aM:]
1912, Knight V. State, 64 Tex. Cr. 541, 144 S. W. 967 (collecting the authorities).
Furthermore, even though it be presumed, the State in a prosecution for seduction may
on the case in chief ofifer evidence of the chastity :
1912, Knight v. State, 64 Tex. Cr. 541, 144 S. W. 967. This really involves the principle
of Order of Evidence {ante, § 1869).
[J\rofe3; add:]
1913, Ewell V. Ewell, 163 N. C. 233, 79 S. E. 509.
§ 2529. Identity of Person, etc.
[NoteZ; add:]
Canada: 1906, R. v. Byron, 37 N. Br. 383 (certificate of prior conviction,- held sufficient on
the facts).
1910, R. V. Atkinson, 44 N. Sc. 521 (certificate of prior conviction of "Benjamin Atkinson"
of the same address, held suflBcient).
United States: 1913, Thompson v. State, 66 Fla. 206, 63 So. 423 (second offence; more
evidence than mere identity of names required).
1908, Clifford v. Pioneer Fireproofing Co., 232 111. 150, 83 N. E. 448 (conviction of Eugene
Meyers, admitted; "where the names are identical," no other evidence is needed).
1905, State v. Loser, 132 la. 419, 104 N. W. 337 (conviction of "William S. B.," admitted
to impeach WiUiam B.). 1906, State v. Smith, 129 la. 709, 106 N. W. 187 (former convic-
tion of "John A. Smith," not admitted against John Smith with other evidence of identity ;
Deemer, J., diss.).
1913, Ayers v. Ratshesky, 213 Mass. 589, 101 N. E. 78 (prior conviction of a witness; iden-
tity of name, occupation, and residence, held sufficient on the facts).
1912, State v. Wooten, 92 S. C. 61, 75 S. E. 212 ("W. E. Wooten" and "Ed. Wooten").
1905, Colbert v. State, 125 Wis. 423, 104 N. W. 61 (former conviction; identity of name
suffices).
[Note 4; add:]
1911, Bellis' Case, 6 Cr. App. 283 (rape under age; some evidence of identity of the girl
besides the name on the birth certificate, required).
1911, Birtles' Case, 6 Cr. App. 177 (bigamy; similar, for a marriage certificate).
1905, Snowman v. Mason, 99 Me. 490, 59 Atl. 1019 (Wedgwood's Case followed, in a suit
for criminal conversation).
1905, Bowman v. Little, 101 Md. 273, 61 Atl. 223, 657, 1084 (marriage certificate ; evidence
of identity held insufficient ; Pearce, J., dissenting, and properly, from the extraordinary
opinion of the majority).
1906, State v. Thompson, 31 Utah, 228, 87 Pac. 709 (adultery ; some evidence of identity
required). 1912, State v. Springer, 40 Utah, 471, 121 Pac. 976 (adultery; there must be
some other evidence of identity than the names in the marriage certificate).
[Note 5; add:]
1913, Swindall v. Ford, — Ala. — , 63 So. 651 ("B. M. Ford" presumed the same, in a deed
acknowledgment) .
1906, People v. Wong Sang Lung, 3 Cal. App. 221, 84 Pac. 843 (not presumed where there
664
PRESUMPTIONS § 2531
[Note 5 — contimiedl
are other persons of the same name in the neighborhood) . 1908, Napa S. Hospital v. Dasso,
153 Cal. 698, 96 Pac. 355 ("Tasso" and "Dasso" presumed the same, in an order of hospital
commitment).
1904, Martin v. Brand, 182 Mo. 116, 81 S. W. 443 (land-patent entry).
1905, Fowler v. Stebbins, 136 Fed. 365, C. C. A. 209 (parties to a judgment). 1906, Mcln-
erney «. U. S., 145 Fed. 729, 739, C. C. A. (immigrant).
§ 2530. Continuity: (1) In general (Ownership, etc.).
[Note 2; add:]
Insanity: 1904, Branstrator v. Crow, 162 Ind. 362, 69 N. E. 668.
1905, State v. Austin, 71 Oh. 317, 73 N. E. 218.
Residence: 1910, Holtan v. Beck, 20 N. D. 5, 125 N. W. 1048 (residence for six months in
the same precinct, not presumed on the facts).
1907, State v. Jackson, 79 Vt. 504, 65 Atl. 657 (domicile of an ancestor).
[Note 2, last paragraph ; add ;]
1905, Friend v. Yahr, 126 Wis. 291, 104 N. W. 997 (possession of documents, presumed to
continue).
§ 2531. Same : (2) Life and Death.
[Note 1; add:]
1905, Re Aldersey, 2 Ch. 181 (Kekewich, J. : "Phene's Trusts is not precisely this case,
though it is not very far from it").
[Note 3, par. 1 ; add:]
1911, Allman v. M'Cabe, 2 Ire. 398 (a lease made in 1822 for the term of 21 years after
the death of the survivor of three persons, D. C, then aged 11, B. T. aged 15, R. F. aged 9 ;
B. T. was proved to have died in 1888 ; a witness testified that he had Uved in the town for
18 years prior to 1888 and had inquired for D. C. and R. F. but never heard of them ; the
trial took place in 1910 ; held, that D. C. and R. F. were presumed to have died before 1888,
and that the 21 years began to run in 1888).
1908, Re Ancient Order of United Workmen and M. A. Marshall, 18 Ont. L. R. 129 (hus-
band disappearing after entering a sailboat).
[Note 3, par. 2; add:]
1909, Hansen v. Owens, 132 Ga. 648, 64 S. E. 800.
1910, Kennedy v. Modern Woodmen, 243 111. 560, 90 N. E. 1084 (neither a mere rumor
that the alleged deceased has been alive in the interval, nor the party-claimant's failure to
follow up such a rumor by inquiry, suffice to prevent the operation of the presumption).
Ind. St. 1907, c. 31, p. 50, Feb. 21 (presumption after five years' absence from usual place
of business and departure to parts unknown, upon publication of notice in newspaper,
etc.).
1909, Magness v. Modern Woodmen, 146 la. 1, 123 N. W. 169 (here the rule is stated rather
too strictly for raising the presumption).
1905, Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1 100 (interesting opinion by Burch,
J., emphasizing the necessity of inquiry and of consequent lack of news).
1905, Chapman v. Kullman, 191 Mo. 237, 89 S. W. 924 (statute applied).
1912, Fuller v. New York Life Ins. Co., C. C. A., 199 Fed. 897 (excellent opinion by, J. B.
McPherson, J.).
1909, Miller v. Sovereign Camp., 140 Wis. 505, 122 N. W. 1126 (diligent search is not neces-
sary).
665
§2531 BY WHOM EVIDENCE IS PRESENTED
[Note 3 — continued]
But the rule in Louisiana is of different tenor : 1906, Iberia Cypress Co. v\ Thorgeson,
] 16 La. 218, 40 So. 682 (disappearance for seven years, not sufficient on the facts, under
the peculiar language of the Louisiana Civil Code, art. 70 ; the opinion ignores the reasoning
of the common-law rule).
[Note 3, par. 2; correct:]
For "Hoyt s. Beach, 104 la. 257," read "Sherrod v. Ewell, 104 la. 253."
[Note 4, par. 1 ; add :]
1833, Doe v. Nepean, 5 B. &. Ad. 86.
1905, iJe Aldersey, 2 Ch. 181, 185 (rule of Nepean v. Knight applied).
1913, Caldwell v. Modern Woodmen, 89 Kan. 11, 130 Pac. 642 (the jury may infer a death
before that time, on the circumstances).
1906, Spahr v. Mutual L. Ins. Co., 98 Minn. 471, 108 N. W. 4 (the defendant's policy on S.'s
life lapsed on June 1, 1898 ; on April 4, 1898, S. left his home, and was never again seen
or heard of ; on July 7, 1905, this action was begun ; held that S. was presumed to be dead,
but not to have died at any particular time before or after June 1, 1898).
[Note 5; add:]
In re Jackson, Jackson v. Ward, [1907] 1 Ch. 354 (no presumption of death without issue).
Contra: 1908, Baison v. Mulligan, 191 N. Y. 306, 84 N. E. 75 (B., immarried, having dis-
appeared 37 years ago, his death was presumed (1) without issue and (2) intestate).
§ 2532. Survivorship.
[Note 1; add:]
1908, St. John v. Andrews Institute, 191 N. Y. 254, 83 N. E. 981.
1907, Walton v. Burchel, 121 Tenn. 715, 121 S. W. 391*.
§ 2533. Seaworthiness.
[Note 1; add:]
1910, The America, D. C. S. D. N. Y., 174 Fed. 724 (mere sinking does not raise a presump-
tion of imseaworthiness, where the charterer is in possession, in an action by the charterer
against the owner).
§ 2534. Regularity ; (1) Performance of Official Duty, etc.
[Note 1, par. 1; add:]
1908, People v. Siemsen, 153 Cal. 387, 95 Pac. 863 (district attorney filing an informar
tion).
1909, Hansen v. Owens, 132 Ga. 648, 64 S. E. 800 (presumption from notary's regular attes-
tation of a deed).
1904, McKinstry ». 'Collins, 76 Vt. 221, 56 Atl. 985 (assault by an officer serving process;
presumption applied).
1904, Marchant's Estate, 121 Wis. 526, 99 N. W. 320 (statutory proceedings).
§ 2535. Same : (2) Appointment and Authority of Officers.
[Note 3; add:]
1906, Barry v. Smith, 191 Mass. 78, 77 N. E. 1099 (board of health).
666
PRESUMPTIONS § 2536
§ 2536. Similarity of Foreign Law.
[Text, p. 3585, paragraphs (1) and (2) :]
For these rules, substitute those set forth by Professor Albert M. Kales, in his article "Pre-
sumption of Foreign Law," Harvard Law Review, XIX, 401 (1906), where the cases are
exhaustively collected. His conclusions merit acceptance.
To the cases cited by him, add the following more recent ones :
1903, Merritt v. Copper Crown Co., 36 N. Sc. 383, 393 (rules of construction by West Vir-
ginia law, presumed the same).
1906, Southern Express Co. v. Owens, 146 Ala. 412, 41 So. 752 (common carrier's contract;
common law of South Carolina presumed the same) . 1907, Watford v. Alabama & F. L. Co.,
152 Ala. 178, 44 So. 567 (personal injury received in Florida).
1904, Rooney v. Southern B. & L. Ass'n, 119 Ga. 941, 47 S. E. 345 (Alabama contract;
common law as to usury presumed). 1904, Savannah F. & W. R. Co. v. Evans, 121 Ga.
391, 49 S. E. 308 (statute of Florida as to signals at crossings, not noticed). 1906, Thomas v.
Clarkson, 125 Ga. 72, 54 S. E. 77 (Alabama law as to usury ; the common law presumed to
obtain there, but the Alabama judicial rulings were not to control in its interpretation).
1906, Ellington v. Harris, 127 Ga. 85, 56 S. E. 134 (marriage).
1910, Maloney v. Winston Bros. Co., 18 Ida. 740, 111 Pac. 1080 (mining law).
1904, Sokel v. People, 212 111. 238, 72 N. E. 382 (marriage in Turkey). 1905, Scholten
V. Barber, 217 111. 148, 75 N. E. 460 (extension of time to a surety on a note made in
Missouri; common law assumed to be the same). 1905; Leathe v. Thomas, 218 111. 246,
75 N. E. 810 (action on a Missouri judgment; the Missouri statute upon set-off, not
noticed).
1903, Baltimore & O. S. W. R. Co. v. HoUenbeck, 161 Ind. 452, 69 N. E. 136 (wage-claim,
already paid under garnishment in Kentucky ; the Indiana statute of exemptions not pre-
sumed to be adopted by statute in Kentucky). 1908, Wabash R. Co. v. Hassett, 170 Ind.
370, 83 N. E. 705 (personal injury and death).
1904, Banco de Sonora v. Bankers' M. C. Co., 124 la. 576, 100 N. W. 532 (law of Mexico
as to age of majority, not presumed to be the same). 1906, Westheimer v. Habinck, 131
la. 643, 109 N. W, 189 (shipment of liquor ; presumption of similarity for Missouri law, not
enforced "if the assumption would impose a penalty or work a forfeiture"). 1908, Varner v.
Interstate Exchange, 138 la. 201, 11^ N. W. 1111 (foreclosure of trust deed by sale by sheriff
in Missouri ; bill in equity being required by law in Iowa, the Missouri law was presumed the
same).
1904, First Nat'l Bank v. Nordstrom, 70 Kan. 485, 78 Pac. 804 (note payable in Iowa ; law
of Iowa presumed the same). 1906, St. Louis & S. F. R. Co. v. Johnson, 74 Kan. 83, 86 Pac.'
1^6 (death in Indian Territory; common law presumed the same).
1904, Klenke v. Noonan, 118 Ky. 436, 81 S. W. 241 (common law as to marriage, presumed
to obtain in Ohio). 1910, Yellow P. L. Co. v. Ford, 141 Ky. 5, 131 S. W. 1010 (personal
injury law).
1904, State v. Allen, 113 La. 705, 37 So. 614 (bigamy; the Indiana law of validity of a
marriage presumed to be the same as in Louisiana).
1904, Callender, M. & T. Co. v. Flint, 187 Mass. 104, 72 N. E. 345 (guaranty; Rhode
Island). 1904, Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456 (note; South Dakota).
1906, Farmers' Nat'l Bank v. Venner, 192 Mass. 531, 78 N. E. 540 (default of a N. Y. note;
the law of N. Y. presumed the same). 'l907, Demelman v. Brazier, 193 Mass. 588, 79 N. E.
812 (days of grace in New York law). 1907, Com. v. Stevens, 196 Mass. 280, 82 N. E. 33
(Georgia statute as to marriage, not presumed the same). 1908, Gordon v. Knott, 199
Mass. 173, 85 N. E. 184 (English contract). 1913, Holden v. McGillicuddy, 215 Mass. 563,
102 N. E. 923 (Vermont law as to negligence per se, presumed the same).
1912, Hartwell v. Parks, 240 Mo. 537, 144 S. W. 793 (regularity of a probate record).
1905, McKnight v. Oregon S. L. R. Co., 33 Mont. 40, 82 Pac. 661 (injury to personalty in
Idaho; the statute of Idaho not noticed).
667
§2536 TO WHOM EVIDENCE IS PRESENTED
[Text, p. 3585 — continued]
1906, Robb V. Washington & J. College, 185 N. Y. 485, 78 N. E. 359 (restraint on aliena-
tion ; Pennsylvania not presumed to have a statute like New York).
1904, Lassiter v. Norfolk & C. R. Co., 136 N. C. 89, 48 S. E. 642 (Yirginia statute as to
death by wrongful act; subject discussed ill two opinions).
1909, Schlotterbeck v. Sehwinn, 23 Okl. 681, 103 Pac. 854 (usury statute of Indian Terri-
tory). 1912, Cole V. District Board, 32 Okl. 692, 123 Pac. 426 (Kentucky law for colored
person's school rights).
1904, Linton v. Moorhead, 209 Pa. '646, 59 Atl. 264 (married woman's power of attorney
in England ; law of England presumed the same, for lack of proof).
1904, Columbian B. & L. Ass'n v. Rice, 68 S. C. 236, 47 S. E. 63 (Virginia contract ; common
law as to usury presumed, and the statute not presumed to be the same as in N. C).
1904, Baird v. Vines, 18 S. D. 52, 99 N. W. 89 (non-negotiable note ; law of Montana pre-
sumed the same).
1905, Iowa L. & T. Co. v. Schnose, 19 S. D. 248, 103 N. W. 22 (mortgage in Iowa; law of
Iowa presumed the same).
1904, Ex parte Latham, 47 Tex. Cr. 208, 82 S. W. 1046 (community property in Oklahoma;
law of Oklahoma presumed the same).
1904, The Matterhorn, 128 Fed. 863, 63 C. C. A. 331 (maritime law of another country;
its difference must be proved).
1905, Frank v. Gump, 123 Va. 205, 51 S. E. 358 (Maryland contract ; common law pre-
sumed the same).
1907, Norfolk & W. R. Co. v. Denny's Adm'r, 106 Va. 383, 56 S. E. 321 (statutory action
for death). \
1905, Edleman v. Edleman, 125 Wis. 270, 104 N. W. 56 (alimony in divorce ; Tennessee
property law presumed the same).
§ 2537. Contracts.
[Note 1 ; add, under Warranties :]
1904, Vincent v. Mutual R. F. L. Ass'n, 77 Conn. 281, 58 Atl. 963 (age).
[Note 1, at the end ; add :]
Conditions in a bond or mortgage : 1906, Temple v. Phelps, 193 Mass. 297, 79 N. E. 482.
Paymeni of the premium of an insurance policy: 1904, Thomas v. Northwestern M. L. Ins.
Co., 142 Cal. 79, 75 Pac. 665.
Good faith of a purchaser for value vnthovt notice : 1909, Arnd ». Aylesworth, 145 la. 185,
123 N.W. 1000.
For accident insurance, see ante, § 2510.
§ 2538. Statute of Limitations.
[Note 3; add:]
1906, Schell v. Weaver, 225 111. 159, 80 N. E. 95.
§ 2540. Sundry Burdens and Presumptions.
[Note 1; add:]
1905, Hill V. Dalton, 140 N. C. 9, 52 S. E. 273 (statutory proceeding to establish a boundary).
§ 2550. Judge and Jury ; Admissibility of Evidence.
[Note 1 ; add :]
1904, Parrish v. State, 139 Ala. 16, 36 So. 1012 (expert's competency).
668
JUDGE AND JURY § 2551
[Note 1 — contimied]
1905, Hoch V. People, 219 111. 265, 76 N. E. 356 (the Court decides upon the facts mak-
ing a second wife competent).
191 1, State V. Lee, 127 La. 1077, 54 So. 356 (defendant claimed not to be M. L. the murderer ;
the wife of M. L. being called in his behalf to identify him, held that the judge was to pass
upon the relationship, for the purpose of declaring her disqualified or not).
1913, Slotofski 11. Boston Elev. R. Co., 215 Mass. 318, 102 N. E. 417 (the judge's exclusion
of a deceased's declarations, after hearing evidence to their making and finding that they
were in his opinion not made, held to be a just exercise of his power on the facts ; where the
judge's preliminary finding is adverse, the party may not offer or argue the evidence to the
jury, as he may when the finding is in favor of admissibility in the case of confessions,
ante, § 861, n. 3).
1905, State v. Hancock, 28 Nev. 300, 82 Pac. 95 (wife as witness).
1906, State v. Monich, 74 N. J. L. 522, 64 Atl. 1016 (confessions, expertness, dying declara-
tions; good opinion by Pitney, J.).
1911, Clendennin v. Clancy, 82 N. J. L. 418, 81 Atl. 750 (competency of witness).
1906, People v. Dolan, 186 N. Y. 4, 78 N. E. 569 (producing original documents).
1913, Western N. L. Ins. Co. v. Williamson H. F. Co., 37 Okl. 213, 131 Pac. 691.
1913, Gila Valley G. & N. R. Co. v. Hall, 232 U. S.'94, 34 Sup. 229 (whether a person speaking
was so near H. as to be heard by H. thus admitting what the person said : "the finding of
the trial judge upon such a preliminary question of fact is not subject to be reversed on appeal
or error if it be fairly supported by the evidence" ; this phrasing seems to accord little
enough credit to the trial judge ; why cannot the Federal Supreme Court lend its aid to
restore the trial judge from a marionette to a Minos? See the comments of Professor
Henry Schofield, on the desirability of letting the rules of procedure encourage trial judges
to be strong, in his article "New Trials and the Seventh Amendment" (Illinois Law Review,
VIII, 287, passim).
1912, Mullins v. Com., 113 Va. 787, 75 S. E. 193 (conversation of accused).
[Note 3; add:]
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 ("If in a criminal case the decision is
against the defendant, he has another chance before the jury, so far as it depends upon st
question of fact").
1904, King v. Hanson, 13 N. D. 85, 99 N. W. 1085 (privileged letter, whose authenticity
was denied; theletter left to the jury to decide upon).
[Note 6, par. 1 ; add, at the end :]
The more recent doctrine in Massachusetts seems to have abandoned this pristine attitude :
1905, Com. V. Tucker, 189 Mass. 457, 76 N. E. 127 (not citing Com. v. Robinson).
Other issues of fact for the judge :
1909, Waller's Case, 3 Cr. App. 213, 222, 1 K. B. 364 (under a statute permitting proof
of former convictions to affect sentence, with consent of the Director of Public Prosecu-
tions, the proof of such consent is a matter of fact for the judge).
§ 2551. Sufficiency of Evidence.
[Note 2; add:]
Some practical comments on the operation of this rule in experience will be found in Mr.
(Assistant District Attorney) Arthur Train's valuable book, "The Prisoner at the Bar"
(1906), pp. 180-189.
In U. S. V. Foster (1910), D. C. W. D. Va., 183 Fed. 627, McDowell, J., sets forth with
admirable clearness and good sense the attitude to be taken by the judge in charging the
jury upon the facts. As one reads his opinion, the reflection cannot be avoided that all
.669
§ 2551 OF WHAT FACTS NO EVIDENCE IS NEEDED
[Note 2 — continued]
lawyers who would ponder it would heartily join to restore in the State courts that practice
which it was intemperate folly to abandon. Were Judge McDowell's principles in general
force, the jury system would be freed from much of the ground for criticism so often heard
nowadays.
§ 2552. Negligence.
[Note 6; add:]
1905, Chicago & E. I. R. Co. v. Crose, 214 111. 602, 73 N. E. 865. 1905, Chicago City R. Co.
B. Nelson, 215 111. 436, 74 N. E. 458.
1905, Buehner Chair Co. v. Feulner, 164 Ind. 368, 73 N. E. 816. 1905, Diamond B. C. 6o. v.
Cuthbertson, 164 Ind. 368, 73 N. E. 818.
1909, Johnson v. Chicago R. I. & P. R. Co., 80 Kan. 456, 103 Pac. 90 (careful opinion, by
Benson, J.).
1909, Harris v. Missouri K. & T. R. Co., 24 Okl. 341, 103 Pac. 758.
1909, Missouri Pac. R. Co. v. Castle, 8th C. C. A., 172 Fed. 841 (a statute declaring "ques-
tions of negligence" to be for the jury, held to apply to "questions of fact only").
§ 2553. Reasonableness.
[Note 4 ; add :]
1910, KroU V. Close, 82 Oh. 190, 92 N. E. 29 (probate judge's allowance of reasonable funeral
expenses ; his finding held not a finding of fact).
§ 2555. Facts Judicially Noticed ; Trial by Inspection, etc.
[Note 5, par. 2 ; add, under Accord :]
1905, Clark v. Eltinge, 38 Wash. 376, 80 Pac. 556.
[Text, p. 3595 ; i?isert a new par. (4) :]
(4) Where a legislative act is argued to be unconstitutional, and this is to
depend upon the unreasonableness, or lack .of possible reasonableness, of the
law in its purpose or operation, and thus the external facts furnishing the
possible legislative motive or the possible actual effect must be considered,
this incidental question of fact is not for the jury, but for the Court. Hence,
no testimony, of experts or others, would be admitted for the jury. But by
what theory or method shall the Court receive information of the alleged
facts ? This is an interesting inquiry, hitherto not carefully worked out by
the Courts. The principle of judicial notice has usually been loosely invoked.'
* See some acute comments on the question in Professor Henry Schofield's article, "New
Trials and the Seventh Amendment" (Illinois Law Rev., VIII, p. 403, note 65) ; also the
following recent cases :
1910, Ritchie v. Wayman, 244 111. 509, 91 N. E. 694 (female labor law ; the Court noticed
the "general conseasus of opinion" as to the justifiable conditions leading to such a law,
namely, woman's physical organization, her maternal functions, the rearing of children,
and the maintenance of home ; in truth, the Court found this consensus in passages quoted
in a voluminous brief of one of the parties). 1912, People v. Elerding, 254 111. 579, 583,
98 N. E. 982 (labor law; repeating the expression, from Ritchie v. Wayman, that "the
Court would take judicial knowledge" as to woman's health being subject to be affected by
hours of labor).
1913, Pittsburg, C, C. & St. Louis R. Co. v. State, — Ind. — , 102 N. E. 25.
670
JUDICIAL NOTICE § 2559
[Text, p. 3595 — continued]
For the question whether the facts of election etc. affecting the operativeness of a statute
conditioned on a rejferendum or local option vote for becoming operative shall be inquired
into and decided by the Court or submitted to the jury, see the following opinions :
1907, State ». O'Brien, 35 Mont. 482, 90 Pac. 514.
§ 2556. Construction of Documents.
[Note 1; add:]
1906, Turner r>. Osgood A. C. Co., 223 111. 629, 79 N. E. 306.
1903, Smith x. Sovereign Camp, 179 Mo. 119, 77 S. W. 862 (insurance policy).
1911, Lynes v. Northern Pacific R. Co., 43 Mont. 317, 117 Pac. 81 (railway rules).
1905, Senterfeit ». Shealy, 71 S. C. 259, 51 S. E. 142 (the judge may instruct as to the legal
effect of a deed).
[NoU2; add:]
1905, Locke v. Lyon M. Co., — Ky. — , 84 S. W. 307.
1909, ^tna Indemnity Co. v. Waters, 110 Md. 673, 73 Atl. 712.
[Note 3; add:]
1912, O'Regan v. Canadian P. R. Co., N. Br. S. C, 9 D. L. R. 849 (for lost documents, the
judge construes the meaning, the jury decides on the evidence of the contents).
[Note 4, par. 1 ; add :]
1905, Ellis V. Block, 187 Mass. 408, 73 N. E. 475 (function of the jury construed, in an
opinion not clear).
1908, Taplin v. Marcy, 81 Vt. 428, 71 Atl. 72 (sale of logs; two letters held notvto be ex-
clusively for the Court's construction, but to be submitted with other evidence to the jury).
§ 2557. Criminal Intent.
[Note 3, 1. 6; add:]
1910, Oakes v. State, 98 Miss. 80, 54 So. 79.
§ 2558. Foreign Law.
[Note 1 ; add :]
1906, Christiansen v. Graver T. Works, 223 111. 142, 79 N. E. 97 (cause of action in Indiana;
the statutes and decisions of Indiana held to have been properly introduced and read "be-
fore the Court and out of the presence of the jury").
1906, Mercantile Guaranty Co. v. Hilton, 191 Mass. 141, 77 N. E. 312 (here the Court went
to the pedantic length of refusing to consider New York decisions, cited in argument but
not offered at the trial, upon the interpretation of a New York statute; because "this is
here a question of fact").
1909, Electric Welding Co. ». Prince, 200 Mass. 386, 86 N. E. 947 (stating new shadings,
which exhibit the irrational nature of the rule leaving foreign law to the jury).
1912, Hite v. Keene, 149 Wis. 207, 134 N. W. 383 (Swiss law ; a code section, as interpreted
by experts ; held to be for the jury).
§ 2559. Local Law.
[NoU\, 1. 2; add:]
1909, State v. Daley, — Or. — , 103 Pac. 502.
671
§2566 OF WHAT FACTS NO EVIDENCE IS NEEDED
§ 2566. Judicial Notice ; Anomalous Meanings.
[Note 4; add:]
Statham v. Statham and Gaekwar of Baroda, [1912] P. 92 (like Mighell v. Sultan of Jahore,
supra).
§ 2568. Notice must be Requested, etc.
[Note 3; add:]
1913, Line v. Line, 119 Md. 403, 86 Atl. 1032 (if below no request for notice is made, on
appeal notice need not be taken ; here, of a date making a bond invalid).
§ 2569. Judge's Private Knowledge, etc.
[Note 4, par. 2 ; add :]
1907, State v. Porter,. 76 Kan. 411, 91 Pae. 1073 (value of attorneys' fees taxable in a case
tried before the judge).
[Note 8; add:]
The question of the method of informing the Court on facts relevant to the constitution-
ality of a siattUe is in need of special and frank consideration ; see the citations ante,
§ 2555, n. 4.
§ 2570. Judicial Notice by the Jury's Own Knowledge.
[Text, p. 3605, 1. 15 ; insert the following quotations :]
1895, Hackney, J., Jenney Electric Co. v. Branham, 145 Ind. 314, 41 N. E. 448 (permitting
the use of experience in judging of the credibility of witnesses) : "It is argued that such a
rule woiild permit the disposition of a cause upon the whims of jurors, rather than upon
the law and the evidence as they were learned in the trial. Jurors should be, and, as a rule,
are, selected because of their extensive experiences among men. The school of experience
which men attend in their varied relations among men imparts a keenness of mental vision
which enables them the more readily to see the motives and to judge of the selfish or un-
selfish interests of men. This education, be it much or Uttle, is a part of the juror, and
should not, if possible, be laid aside in passing upon the inducements which may surround
a witness to speak falsely. It is this education which to a great extent enables a juror to
discover in the faltering manner or the downcast eye whether the statement of the witness
is made in modesty or in the guilt of falsehood. The value of experience is not to be given
up when the man becomes a juror, and is required to apply the tests of credit to the heart
and mind of the witness, but whatever qualification that experience gives should be employed-
to the end that the whole truth may be known and acted upon."
1884, Lyon, J., in Washburn v. R. Co., 59 Wis. 364, 370 : "A jury is not bound to give and
cannot give any weight to testimony which, although undisputed by witnesses, is contrary
to what every person of ordinary intelligence knows to be true. To illustrate, should a
witness testify that at Boston on a certain day the sun arose at midnight, or that the Missis-
sippi river empties into Lake Michigan, or that white is black, the testimony would be re-
jected at once. . . . Beyond this the jury cannot properly go. To allow jurors to make up
their verdict on their individual knowledge of disputed facts material to the case, not testi-
fied to by them in court, or upon their private opinions, would be most dangerous and un-
just. It would deprive the losing party of the right of cross-examination and the benefit
of all the tests of credibility which the law affords. Besides, the evidence of such knowledge
or of the grounds of such opinions could not be preserved in a bill of exceptions or questioned
on appeal."
672
JUDICIAL NOTICE • §2571
[Note 3; add:]
1908, Shum's Adm'x v. Rutland R. Co.^81 Vt. 186, 69 Atl. 945 (reviewing cases).
[Note 5; add:]
1907, Morehead's Trustee v. Anderson, 125 Ky. 77, 100 S. W. 340.
[Note 8, par. 2; add:]
1908, Georgia R. & E. Co. v. Dougherty, 4 Ga. App. 585, 62 S. E. 157 (same).
[Note 9, par. 1 ; add:]
1912, Graham v. Grand Trunk R. Co., Ont. C. A., 1 D. L. R. 554 (death at a switch;
knowledge of locaUty used).
1905, Ward v. State, — Ala. — , 39 So. 923 (default of duty as road overseer ; common
knowledge as to the condition of the county roads, not available).
1906, Hayes v. Wagner, 220 111. 256, 77 N. E. 211 (the jury may weigh the evidence "in the
light of their common observation and experience").
1912, Downing, v. Farmer's M. F. Ins. Co., — la. — , 138 N. W. 917 (whether a mare was
killed by Ughtning ; the jury not allowed to consider "their own observation and experience,
if any, with reference to losses of that nature" ; and thjis the law on the one hand proceeds
to eliminate the use of such intelligence as the jury has, while on the other arise lamentations
over its lack of inteUigence).
1911, Solberg v. Robbins Lumber Co., 147 Wis. 259, 133 N. W. 28 (but this knowledge need
not be common to all the jurors ; here the jurors were allowed to use their understanding of
the construction of the machines in issue, in weighing the evidence ; sensible opinion, by
Barnes, J.).
[Text, p. 3607, 1. 4 ; adds. new § 2571 :]
§ 2571. Future of the Doctrine of Judicial Notice.
The doctrine of Judicial Notice contains the kernel of great possibilities,
as yet not used, for improving trial procedure in the courts of to-day.
Professor Thayer pointed this out many years ago : ^ " Courts may judicially
notice much which they cannot be required to notice. That is well worth
emphasizing; for it points to a great possible usefulness in this doctrine,
in helping to shorten and simplify trials. It is an instrument of great capacity,
in the hands of a competent judge ; and it is not nearly as much used, in the
region of practice and evidence, as it should be. . . . The failure to exercise
it tends daily to smother trials with technicality and monstrously lengthens
them out."
Why has this principle not been adequately used by judges ?
One reason is that they apparently forget that (as Professor Thayer says)
they may in particular cases notice much that they cannot be required to
notice by general rule. E..g., a rule requiring them to notice always the in-
cumbency of a sheriff's office may go too far ; but they may in a given case
be justified in declaring a specific sheriff to be notorious; and so on, in a
thousand classes of facts.
Another reason is that they apparently forget that the principle allows
them to notice in specific cases, even though no general rule for the whole class
of such cases could be laid down. This is because notoriety in fact is the
1 " Preliminary Treatise on Evidence'-' (1898), 300.
673
§2571 OF WHAT FACTS NO EVIDENCE IS NEEDED
[Text, p. 3607 — continued]
principle, and facts are not susceptible of inflexible rule. The precedents of
former judges, in declining to notice or assenting to notice specific facts, do
not restrict the present judge from noticing a new fact, provided only that the
new fact is notorious to the community.
With these aspects of the principle in mind, a large field opens for reducing
the tedious proof of notorious facts. The principle is an instrument of a use-
fulness hitherto imimagined by judges. Let them make liber^,! use of it;
and thus avoid much of the needless scandal that now is raised by the artificial
impotence of judicial proceedings.^
^ The cases of People v. Schmitz, cited post, § 2576, n. 1, and People v. Sixby, cited post,
§ 2578, n. 1, are merely examples of the farcical exhibitions that repeatedly scandalize our
system of legal proof.
§ 2572. Laws Judicially Noticed; (1) Domestic Statutes, etc.
[Note 6; add:]
So also for sundry kinds of laws : 1904, Davis v. State, 141 Ala. 84, 37 So. 454 (local stock-
law, noticed).
[Note 9; add:]
1905, Atlanta & W. P. R. Co. v. Atlanta B. & A. R. Co., 124 Ga. 125, 52 S. E. 320 (railroad
charter granted by the Secretary of State under a general law, noticed).
[Note 10, par. 1 ; add, under Contra :]
1904, Chesapeake & O. C. Co. v. Western Md. R. Co., 99 Md. 570, 58 Atl. 34 (St. 1904, c. 56,
affecting a specific railroad company, noticed).
[Note 10, par. 2, 1. 4; add:]
1909, Dunn, Matter of, 212 U. S. 374, 29 Sup. 299 (Federal incorporation by act of Con-
gress, noticed).
[Note 11; add:]
1905, Foley v. Ray, 27 R. I. 127, 61 Atl. 50.
' [NoU 14; add:]
1905, New York, N. H. & H. R. Co. v. Offield, 78 Conn. 1, 60 Atl. 740.
[Note 15,1. 1; add:]
1909, Metteer v. Smith, 156 Cal. 572, 105 Pac. 735 (city ordinance).
1904, O'Brien v. Woburn, 184 Mass. 598, 69 N. E. 350 (city).
Contra : 1909, Mayhew v. Eugene, 56 Or. 102, 104 Pac. 727 (municipal criminal ordinance,
noticed under local statutes, B. 85 C. Comp. § 90).
[Note 15, at the end ; add :]
1906, Hill V. Atlanta, 125 Ga. 697, 54 S. E. 354.
111. St. 1905, May 18, § 54 (the Municipal Court of Chicago shall notice general ordinances
of Chicago and municipal bodies included therein, and pubUc laws of a U. S. State or Terri-
tory). St. 1905, May 18 (Primary Elections), § 119 (this act to be noticed in any munici-
pality to which it applies).
1912, People v. Quider, 172 Mich. 280, 13 N. W. 546 (similar).
674
JUDICIAL NOTICE § 2573:
[Note 15 — continued]
1904, Portland d. Yick, 44 Or. 439, 75 Pac. 706 (and on appeal the Circuit Court will do the
same ; and will also notice the municipal council's journals).
[NotelQ; add:]
1905, Carr «. First National Bank, 35 Ind. App. 216, 73 N. E. 947 (U. S. Post-Office depart-
mental regulations, noticed).
1881, Low «. Hanson, 72 Me. 105 ("rules and regulations of one of the departments es-
tablished in accordance with the statute" are noticed).
1906, State v. Southern R. Co., 141 N. C. 846, 54 S. E. 294 (Federal quarantme regulations
of Department of Agriculture, noticed).
1905, Sprinkle v. U. S., 141 Fed. 811, 819, C. C. A. (regulations of the commissioner of in-
ternal revenue, noticed). 1906, Nagle v. U. S., 145 Fed. 302, C. C. A. (post-oflSce reguljt-
tions not noticed ; " it is a hopeless task for an appellate court to determine what such reg-
ulations were at any particular time [without formal pleading and evidence] ; it must either
accept counsel's statement, or itself make inquiry of the particular department; neither of
which practices is to be commended"). 1912, Robinson j). Baltimore & O. R. Co., 222 U. S.
506, 32 Sup. 114 (a statute making admissible the reports of the Interstate Commerce Com-
mission's decisions does not oblige a trial Court to take judicial notice of such decisions ;
but surely the learned Court should have guarded its opinion against leaving the impression
that it sanctioned the petty and unpractical view that such decisions were not justly notice-
able by the common law principle).
§ 2573. Same : (2) Foreign Law.
[Note 2, par. 1 ; add :]
1896, Union C. Ins. Co. v. Pollard, 94 Va. 146, 152, 26 S. E. 421. 1896, App ». App, 106 Va.
253, 55 S. E. 672 (Pennsylvania probate law). .
[Note 3; add:]
1904, Metropolitan Stock Exchange v. Lyndonville N. Bank, 76 Vt. 303, 57 Atl. 101.
[Note 4 ; add :]
1912, Republic of France v. Peugnet, Sask. S. C, 1 D. L. R. 204 (extradition treaty noticed,
without putting in evidence the "Canada Gazette," under Rev. St. C. 1906, c. 155, § 8, Ex-
tradition Act). '
1904, LaRue «. Kansas M. L. Ins. Co., 68 Kan. 539, 75 Pac. 494 (Spanish treaty, of the
Philippines).
1913, Butschkowski v. Bracks, 94 Nebr. 532, 143 N. W. 923.
1906, Peano v. Brennan, 20 S. D. 342, 106 N. W. 409 (Indian treaty).
[Note 6; add:]
1907, Moore v. Pywell, 29 D. C. App. 312 (action for death based on a Maryland statute not
pleaded ; the statute noticed).
1884, Lamar v. Micou, 114 U. S. 218, 5 Sup. 857 (whether in statutes or in decisions).
1912, Monongahela R. C. G. & C. Co. v. Schinnerer, C. C. A., 196 Fed. 375 (whether in
statute or in decisions).
So too in Canada :
1907, Logan v. Lee, 39 Can. Sup. 311, 313 (the Dominion Supreme Court notices laws "in
any of the provinces or territories of Canada").
[Note 9; add:]
1912, Pa Pelekane's Title, 21 Haw. 175, 187 (Hawaiian Islands before annexation, noticed).
675
§ 2573 OF WHAT FACTS NO EVIDENCE IS NEEDED
[Note 12; add;]
1909, Electric Welding Co. v. Prince, 200 Mass. 386, 86 N. E. 947.
§ 2574. Political Facts ; (1) International Affairs, etc.
[Note 1; add:]
and this includes a ciml war, as well as insurrection in some forms : 1862, Prize Cases,
2 Black 635, 667 (civil war with the Southern Confederacy).
1904, LaRue v. Kansas M. L. Ins. Co., 68 Kan. 539, 75 Pac. 494 (insurrection in the Philip-
pines before 1901).
§ 2575. Same : (2) Domestic Political Organization, etc.
[Note 1, par. 1 ; add:]
1909, Lyman v. State, 90 Ark. 596, 119 S. W. 1116 (location of a city in a county, noticed).
1906, Topeka v. Cook, 72 Kan. 595, 84 Pac. 376 (location of an alley within city limits, not
noticed). 1906, State v. Ricksecker, 73 Kan. 495, 85 Pac. 547 (that C. was a city of the
second class, noticed). 1906, Worden v. Cole, 74 Kan. 226, 86 Pac. 464 (location of a rail-
road company as to a section of public land, under a Federal statute, noticed).
1904, Stealey v. Kansas City, 179 Mo. 400, 78 S. W. 599 (that a certain avenue was within
five miles of the city limits, not noticed).
1909, Rea v. State, 3 Okl. Cr. 281, 105 Pac. 386 (that no county of Pontotoc existed
before State organization in 1907, noticed) :
1904, Baker v. State, 47 Tex. Cr. 482, 83 S. W. 1122 (Government ownersliip of a Federal
fort on a city line, noticed, but not the precise boundary on the ground).
1905, West Seattle v. W. S. L. & I. Co., 38 Wash. 359, 80 Pac. 549 (location of land within a
city two-mile limit, not noticed).
§ 2576. Domestic Officials, etc.
[Note 1 ; add :]
1908, People v. Schmitz, 153 Cal. xviii, 94 Pac. 419 (judicial notice not taken, that S. was
mayor of San Francisco ; see the comments thereon, by Francis J. Henry, Chief Justice
Beatty, and the present writer, collected at p. 1144 of the present writer's "Cases on Evi-
dence," 2 ed., 1913).
1909, Kellogg V. Finn, 22 S. D. 578, 119 N. W. 545 (Federal surveyor-general, noticed).
1909, Perovich i>. Perry, 9th C. C. C, 167 Fed. 789 ("Bonaparte" noticed to be Charles
J. B., U. S. Attorney-General, signed to a telegram refusing commutation of sentence).
§ 2577. Same : (4) Official Acts, Elections, etc.
[Note 3; add:]
111. St. 1905, May 18 (Primary Elections), § 119 (the holding of any election under this act
on a primary election day, to be noticed in any municipality to which the act applies).
1909, State v. Swink, 151 N. C. 726, 66 S. E. 448 (special liquor election for a district;
result not noticed).
1904, State v. Scampini, 77 Vt. 92, 59 Atl. 201 (time and result of an election noticed, when
it determines the time of taking effect of a public statute).
[Notei; add:]
1906, Ferrell v. Ellis, 129 la. 614, 105 N. W. 993 (population of towns, by the Federal census,
noticed).
1906, Page v. McCIure, 79 Vt. 83, 64 Atl. 451 (town population, noticed by the Federal
census to be under 4,000).
676
JUDICIAL NOTICE § 2580
[Note 5; add:]
Accord: 1904, Portland v. Yick, 44 Or. 439, 75 Pac. 706.
Contra: 1904, Peckham v. People, 32 Colo. 140, 75 Pac. 422.
§ 2578. Judicial Proceedings ; (1) Officers and Rules of Court.
[Note 1; add:]
1904, Fisher v. Chicago, 213 111. 268, 72 N. E. 680 (county judge, noticed).
1913, Rockford v. Mower, 259 111. 604, 102 N. E. 1032 (county court notices the city clerks
within the county).
[Note 3; add:]
1911, Nickey v. Leader, 235 Mo. 30, 138 S. W. 18 (terms of court ; a discussion^showing how
silly is frequently the practice of Supreme Judicial Cerebration on a simple matter of fact
which could have been settled by a word from either counsel).
[Note 4; add:]
1913, Sixby J). Chicago C. R. Co., 260 111. 478, 103 N. E. 249 (rules of city courts, not noticed ;
§ 20 of Chicago Man. Ct. Act, requiring that Court's rules to be noticed, held void as violat-
ing the uniformity clause of the Constitution).
I
§ 2579. Same : (2) Records of Proceedings.
[Note 2; add:]
1905, Gay v. Gay, 146 Cal. 237, 79 Pac. 885 (prior proceedings in the same litigation,
noticed). 1906, Southern P. R. Co. v. Lipman, 148 Cal. 480, 83 Pac. 445 (U. S. land com-
missioner's letter relating to the litigation, noticed). 1913, Sewell v. Johnson, 165 Cal. 762,
134 Pac. 704 (the plaintiff brought an action in the nature of a creditor's bill based on a
judgment in an action against P. ; the trial court gave judgment for the plaintiff, and the
defendant appealed; meantime the defendant had appealed from the original judgment
a^d it was reversed ; on the present appeal, the defendant suggested orally this reversal,
but he had not pleaded it nor could have done so at the time of pleading ; held, that the
court could and would take judicial notice of the reversal ; this was a manful liberalizatioo
of the doctrine ; yet the serious strain apparently necessary in the opinion to meet the
opposing argument shows how narrow the tradition has been).
1907, Winn v. Coggins, 53 Fla. 327, 42 So. 897 (decree of a court in another county £md
another cause, not noticed).
1907, Waterbury Nat'l Bank v. Reed, 231 111. 246, 83 N. E. 188 (scire facias to revive a
judgment ; the record noticed, without evidence thereof).
1909, Haaren v. Mould, 144 la. 296, 122 N. W. 921 (in contempt, the order disobeyed may
be noticed).
1906, Cumberland T. & T. Co. v. St. Louis, I. M. & S. R. Co., 117 La. 199, 41 So. 492 (that
the plaintiff was a corporation duly organized under Kentucky statutes, this fact having
been proved in another suit in another parish between the plaintiff and another defendant,
not noticed ; prior rulings repudiated).
In some of these cases, what the Court really did was to declare that the production of a
record from its own files was sufficient evidence of genuineness, under the rule of § 2158, ante.
§ 2580. Notorious Miscellaneous Facts ; (1) Commerce, Industry, etc.
[Note 1; add:]
1906, Malone v. LaCroix, 144 Ala. 648, 41 So. 724 (territorial division of the Methodist
Episcopal Church in two bodies, noticed).
677
§2580 OF WHAT PACTS NO EVIDENCE IS NEEDED
[Note 1 — contimied]
1910, Ritchie v. Wayman, 244 111. 509, 91 N. E. 694 (female labor law ; see the citation ante,
§2559, n. 8).
1904, State v. Indianapolis Gas Co., 163 Ind. 48, 71 N. E. 139 (that natural gas no longer
exists in quantities sufficient for heating purposes in Indianapolis, etc., noticed).
1905, Dorr. Cattle Co. v. Chicago & G. W. R. Co., 128 la. 359, 103 N. W. 1003 (that
Texas cattle fever is contagious, noticed).
1905, State v. Kelly, 71 Kan. 811, 81 Pac. 450 (economic and political history of a statute,
noticed). 1905, Sun Ins. Office v. Western W. M. Co., 72 Kan. 41, 82 Pac. 513 (sundry
facts about the burning of wool, noticed).
1913, State v. Cummings, 248 Mo. 509, 154 S. W. 725 (that "Louisville" was a town in
Kentucky, not Missouri, noticed).
1904, Viemeister v. White, 179 N. Y. 235, 72 N. E. 97 (common belief that vaccination is
effective, noticed).
1904, Burwell v. Brodie, 134 N. C. 540, 47 S. E. 47 (season for planting cotton seed, noticed)?
1906, New Mexico v. Denver & R. G. R. Co., 203 U. S. 38, 27 Sup. 1 (law and custom of
New Mexico as to the necessity of branding cattle, noticed). 1909, Waters-Pierce Oil Co. v.
Deselms, 212 U. S. 159, 29 Sup. 270 (explosion of oil ; a local usage to kindle a house-fire
with coal-oil, held not improperly noticed).
1906, Lewis, Hubbard & Co. v. Montgomery S. Co., 59 W. Va. 75, 52 S. E. 1017 (reasonable
time for forwarding a check, etc. ; customary hours of opening banks in Charleston, not
before 9 a.m., noticed).
§ 2581. Same: (2) Times and Distances.
[Note 1; add:]
1905, Com. V. Bond, 188 Mass. 91, 74 N. E. 293 (that the date of a forged check was Sunday,
not noticed).
1905, Orvik v. Casselman, 15 N. D. 34, 105 N. W. 1105 (adoption of standard time at 'a
county-seat, noticed).
§ 2582. Same : (3) Meaning of Words ; Intoxicating Liquors.
[Note 2, par. 1 ; add :]
1905, Barddell v. State, 144 Ala. 54, 39 So. 975 (nickels, noticed to be U. S. coins).
1913, Hapai v. Brown, 21 Haw. 499 (ordinary meaning of Hawaiian words is noticed in this
jurisdiction).
1906, State v. Nippert, 74 Kan. 371, 86 Pac. 478 ("R. L. D." in a Federal revenue record,
noticed to mean " retail liquor-dealer ") .
[Note 2, par. 2 ; add :]
and about the signatures of officers on documents (ante, § 2168, n. 4).
[Note 3; add:]
So also: 1904, The Kawailani, 128 Fed. 879, 63 C. C. A. 347 ("okolehoa," in Hawaii,
noticed to be intoxicating).
[Note 5; add:]
1907, Nussbaumer v. State, 54 Fla. 87, 44 So. 712 (like Caldwell v. State).
[Note 7; add:]
1906, Potts V. State, 50 Tex. Cr. 368, 97 S. W. 477 (that beer means an intoxicating liquor,
not noticed).
1911, State V. Durr, 69 W. Va. 251, 71 S. E. 767 ("temperance beer").
678
JUDICIAL ADMISSIONS § 2593
§ 2590. Effect of Judicial Admissions ; (1) Conclusive, etc.
[Note 1; add:]
1905, State v. Marx, 78 Conn. 18, 60 Atl. 690 (Oscanyan v. Arms Co., U. S., approved).
[Note 2, par. 1; add:]
1913, McCarty v. Kepreta, 24 N. D. 395, 139 N. W. 992, 1005 (affidavits of the defendant
and his attorney, filed with a motion to remand after the record had gone up on appeal, held
a judicial admission, but subject to the appellate court's discretion to relieve from the
ordinary consequences).
§ 2591. Same : (2) Exclusive of Evidence, etc.
[Note 1, par. 1 ; add, under Contra:]
1905, State v. Powell, 5 Pen. Del. 24, 61 Atl. 966 (photographs of wounds on the deceased,
shown, though the defendant admitted the location and character of the wounds).
1908, State ». Lewis, 139 la. 405, 116 N. W. 606 (homicide; the accused having admitted
the killing on the ground of self-defence, the State was allowed to prove the nature of the
wound).
1912, Eesley Light & P. Co. v. Commonwealth P. Co., 172 Mich. 78, 137 N. W. 663
(certified copy of articles of incorporation, admitted, though incorporation was conceded).
1898, Jones v. Allen, 85 Fed. 523, 29 C. C. A. 318.
1903, Smith v. Seattle, 33 Wash. 481, 74 Pac. 674.
1913, Serdan v. Falk Co., 153 Wis. 169, 140 N. W. 1035 (employer's knowledge of employee's
incompetence; reputation admitted).
[Text, p. 3621, 1. 5; correct:]
For "idUI even be excluded," read "may even be excluded."
§ 2592. Same : (3) Validity as a Waiver of Unconstitutionality, etc.
[Note 2, par. 1 ; add :]
1910, United States, for use of E. L. C. Co. v. U. S. Fidelity & G. Co., 83 Vt. 278, 75 Atl. 280.
[Note 2 ; add a new par. 3 ;]
But the present principle does not mean that a party can force the trial judge to admit
illegal evidence simply because the opponent /ai7« to object: 1912, Electric Park Amusement
Co. V. Psichos, 83 N. J. L. 262, 83 Atl. 766 (cited more fully ante, § 2484, n. 4).
[Note 4; add:]
1910, State v. Vanella, 40 Mont. 326, 106 Pac. 364 (confrontation of witnesses).
[Note 5, par. 1 ; add, under Contra :]
1904, Peckham v. People, 32 Colo. 140, 75 Pac. 422 (like Happel v. Brethauer, 111., infra).
1906, Anderson v. Grand V. I. D., 35 Colo. 525, 85 Pac. 313.
1904, State v. Armour Packing Co., — N. C. — , 47 S. E. 411 (agreed statement of facts
cannot be used to overthrow an enrolled statute, if otherwise it is unimpeachable).
[Note 5, par. 2,1. i; add:]
1905, State v. Marx, 78 Conn. 18, 60 Atl. 690.
§ 2593. Same : (4) Effect on Subsequent Trials.
[Note 1, par. 1; add:]
1906, Moynahan v. Perkins, 36 Colo. 481, 85 Pac. 1132 (admission at a former trial, received ;
but with the wholly erroneous addition that it may be left to the jury to determine its effect).
679
§2593 OF WHAT FACTS NO EVIDENCE IS NEEDED
[Note 1 — continued]
1905, Mugge V. Jackson, 50 Fla. 235, 39 So. 157 (admissible, when "not limited to a partic-
ular occasion or temporary object").
1910, Neidy v. Littlejohn, 146 la. 355, 125 N. W. 198 (admission as to proposed testimony,
made to avoid a continuance, is not receivable on a second trial, except to avoid a con-
tinuance).
1882, Central Branch U. P. R. Co. v. Shoup, 28 Kan. 394 (the former admission held binding,
if so intended, for the second trial ; but the jury are erroneously allowed to determine what
the intention was).
1905, Wells & M. Council ». Littleton, 100 Md. 416, 60 Atl. 22 (an admission at a former
trial is irrevocable, except for mistake, etc. ; here, of by-laws).
1904, Stemmler v. New York, 179 N. Y. 473, 72 N. E. 581 (binding, when not expressly
limited to the first trial).
1904, Brown v. Arnold, 131 Fed. 723, C. C. A. (stipulation held to be in force after judgment
rendered).
§ 2594. Form of the Admission ; Who is Authorized.
[Note 1, par. 1; ad^:]
Contra: 1911, St. Louis I. M. & S. R. Co. v. Webster, 99 Ark. 265, 137 S. W. 1103, 1199
(may be oral, unless a statute or rule of court requires writing ; here applied to an agreement
made while taking a deposition; Wood, J., diss., in a convincing opinion).
[Note 2, as to counsel's statement of a case; add:]
1913, Cornell v. Morrison, 87 Ohio 215, 100 N. E. 817 (counsel's opening statement is or-
dinarily to be treated as a judicial admission of facts not denied, and thus a nonsuit may be
immediately based thereon).
Contra: 1910, Pietsch v. Pietsch, 245 III. 454, 92 N. E. 325 (forcible detainer; defendant's
counsel's statement of the facts constituting his defence, made at the close of plaintiff's
counsel's opening statement, held not sufficient to base a ruling ordering a verdict for the
plaintiff ; Oscanyan v. Arms Co. distinguished, but not successfully) ; see the comments
on this case, in the Illinois Law Review, V, 319.
[Note 5, par. 1 ; aM :]
1909, Multnomah L. & B. Co. v. Weston B. & B. Co., 54 Or. 22, 99 Pac. 1046.
For an infant's guardian ad litem the counsel's stipulations would bind :
1911, Byrnes v. Butte Brewing Co., 44 Mont. 328, 119 Pac. 788, semble.
§ 2595. Avoiding a Continuance by Judicial Admission, etc.
[Note 1, par. 1 ; add:]
III. St. 1907, June 3, p. 443, § 84 (Practice Act ; re-enacts § 45 of e. 110 supra);
Kan. St. 1905, c. 338, § 2 (amending Gen. St. 1901, § 5401).
[Note 2; add:]
1904, Gregory v. State, 140 Ala. 16, 37 So. 259 (impeachment of general character, allowed).
1910, Zobel V. Fanny Rawlings M. Co., 49 Colo. 134, 111 Pac. 843 (here the absent witness
was himself called by the opponent and his testimony partly contradicted the aflSdavit).
So also the right remains to exclude specific inadmissible parts of the testimony ; 1904,
State V. Leuhrsman, 123 la. 476, 99 N. W. 140.
In any event the opponent ought to be allowed to show that the applicant's sworn state-
ments as to the grounds for using the absent witness' testimony are false ; compare § 278,
n. 3, ante.
680
JUDICIAL ADMISSIONS §2597
[Note 7, par. 1 ; add :]
1910, Bush V. State, 168 Ala. 77, 53 So. 266.
1904, Davis v. Com., — Ky; — , 77 S. W. 1101. 1912, Breeden v. Com., 151 Ky. 217, 151
S. W. 407.
1906, State v. Stewart, 1 17 La. 476, 41 So. 798 (good opinion by NichoUs, J.). 1910, State v.
Richard, 127 La. 413, 53 So. 669.
1914, Maddox v. State, — Okl. Cr. — , 139 Pac. 994 (non-resident witnesses).
1907, State v. Pope, 78 S. C. 264, 58 S. E. 815.
1908, State v. Wilcox, 21 S. D. 532, 114 N. W. 687.
§ 2596. Admissions of the Genuineness of a Document.
[Note 5; add:]
lU. : 1908, Helbig v. Citizens' Ins. Co., 234 111. 251, 84 N. E. 897 (the sworn denial does not
shift the general burden of proof from the party alleging execution).
Ind. St. 1905, p. 584, § 218 (re-enacts the foregoing statute). 1904, Penn. Mut. L. I. Co. v.
Norcross, 163 Ind. 379, 72 N. E. 132 (insurance policy). 1904, Fudge v. Marquell, 164 id.
447, 72 N. E. 565 (note). 1905, Baum v. Palmer, 165 Ind. 513, 76 N. E. 108 (burden of
proof stated).
Ky. Civ. C. § 128 ; 1912, Beeler's Ex'x v. Cumberland T. & T. Co., 150 Ky. 257, 150 S. W.
335.
Md. Pub. Gen. L. 1888, art. 75, § 23, subsec. 108. 1906, Fifer v. Clearfield & C. C. Co., 103
Md. 1,62 Atl. 1122.
Mich.: 1908, Citizens' Sav. Bank v. Globe B. Works, 155 Mich. 3, 118 N. W. 507 (Cir-
cuit Court Rule 8 applied).
Miss. : 1906, Elmslie v. Thurman, 87 Miss. 537, 40 So. 67 (the rule applies equally where a
plaintiff in a bill in chancery waives answer under oath).
N. C. Rev. 1905, § 1658 (similar to N. Y. C. C. P. § 735).
Wash.: 1904, Beebe v. Redward, 35 Wash. 615, 77 Pac. 1052 (statute construed).
[Text, p. 3629, at the end ; add a. new § 2597 :]
§ 2597. Future of the Doctrine of Judicial Admissions. The doctrine of
Judicial Admissions has a great future before it, if judges will but use it
adequately. In the first place, the judge, should apply it to all informal, as
well as formal, admissions by counsel during trial. In the next place, the
judge should freely call upon counsel to state whether a fact is in good faith
disputed, i. e. should require admissions to be made, where it seems probable
that the fact is not actually disputed. By this method, the presentation of
evidence will be confined to those matters of fact alone which the parties do
dispute.
It is easy to see how large a mass of needless evidencing would thereby be
eliminated, how much time would be saved, and how much confusion of the
jury would be avoided. And this would be attained by the mere application of
an existing principle. Already, in England, the principle is so used, on a large
scale, in the modern practice of settling issues before masters. But it can
also be used by the judge at the trial.
How unappreciative are many judges of the possibility and propriety of
such a use of the principle may be seen from a recent case,^ in which the
1 1910, Pietsch «. Pietsch, 245 111. 454, 92 N. E. 325 ; and comment in the Illinois Law
Review,' V, 319.
681
§2597 OF WHAT FACTS NO EVIDENCE IS NEEDED
[Text, p. 3629 — continued]
Supreme Court, refusing to give force to a counsel's admission during argument,
put the following illustration as a redudio ad absurdum : " It would be a still
more expeditious method, and equally^ conducive to the ends of justice, for
the Court to call up the attorneys, and examine them and decide the case on
what they say [i.e. admit], before calling a jury, whereby much time, labor,
and expense would be saved." Precisely. Yet the learned Court is ap-
parently unaware that the absurd method which they ironically describe is
in truth a natural and practical method, applicable with great advantage
in thousands of cases, — as practitioners, on reflection, can hardly doubt.
It was the method of the common law, some centuries ago, with jury trial
in the height of its prestige. It is the method of England and Canada to-day.
It must become our own method in the future.
682
TABLE OF STATUTES CITED
TABLE OF STATUTES CITED
ENGLAND
Statutes at Large.
1836, 6-7 Wm. IV, c. Ill
1840, 3-A Vict. c. 92
1851, 14-15 Vict. c. 99, § 11
1854, 17-18 Vict. c. 125, § 22
§24
§25
§27
1856, 19-20 Vict. c. 96, § 2
1857, 20-21 Vict. c. 85, § 43
1865, 28-29 Vict. c. 18, § 5
1868, 32-33 Vict. c. 68, § 2
§34
1871, 34r-35 Vict. c. 112, § 19
1872, 35-36 Vict. c. 65, § 4
1879, 41-42 Vict. c. 11, § 4
1882, 45-46 Vict. c. 50, § 24
1885, 48-49 Vict. c. 69
§4
§5
1888, 51-52 Vict. c. 46, § 1
1889, 52-53 Vict. c. 44, § 8
1894, 57-58 Vict. c. 14, § 16
1898, 61-62 Vict.
c. 36, § 1
1904, 4 Edw. VII, c. 15, § 12
§13
§14
§15
§17
1905, 5 Edw. VII, c. 7, § 2
c. 15, § 50
§51
§52
1907, 7 Edw. VII, c. 29, § 68
§78
194, 196
1644
2162
905,
1028
1263
986,
1270
2016
1644
2252
1262
6,
2252
1828
326
2061
1683
1680
1136
2061
1828
2066
398
1828
1828
2066
1411,
2061,
2079
58, 194, 488 i
580,
2243,
2245
2276
488
2252
1411
1380
1411
1828,
2061,
2066
1154
2281
1680
1674
1680
2162
2374
1674
1908, 8 Edw. VII, c. 16, § 1
1684
c. 45, § 2
2061
c. 48, § 8
2152
2153
§9
2152
c. 59, § 10
196
1206
c. 67, § 27
488
§§ 28, 2c
)
1380,
1411
§30
1828
2066
§67
488
§88-
1674,
1680,
1681
1684
c. 69, § 33
1074
§220
1074
1909, 9 Edw. VII, c. 39, § 2
1828
1910, 10 Edw. VII, c. 11, § 8
1671
c.45, §2 -
6
1911, 1-2 Geo. V, c. 6, § 13
2042
1912, 2-3 Geo. V, c. 6, § 6
1674
c. 20, § 7
488
Rides of Court 1883.
'
Ord. XXXI, R. 24
2124
Ord. XXXVI
986
Ord. XXXVIII
1380
Ord. L, R. 3
1862
R. 3-5
1163
IRELAND
Statutes at Large.
1879, 42 Vict. c. 11, § 7
1859
CANADA
Dominion.
Revised Statutes 1886.
c. 50, §31
488
§111
1684
c. 158, §§ 9, 10
2281
685
TABLE OF STATUTES CITED
Criminal Code 1892.
St. 1910, c.
3, §§ 4, 5
488
§6
488, 1856
§684
2044, 2061
§7
2281
§691
, 1269
§8
488, 2252
Criminal Code 1906.
§9
§11
488
2061
§242B
2085
§§ 12, 13
2065
§683
803
§§ 14, 15, 16
1828
§999
1411
,§17
1828, 2066
§1019
21
§18
§20
789, 811
1263
Evidence Act (St. 1893, c.
31).
§21
§22
1028
986, 1270
§ 4 488, 2245
2272, 2273
§23
905
§5
2281
§24
1680
§§8,9
1680, 1684
§25
1684
§10
1681
§26
1680, 1684-
§11
1684
§27
2167
§ 12 1223
1680, 1683
§28
1684
§13
1680
§29
1680
§14
1674, 1680
§30
2375
§15
2167
§31
1639
§16
1684
§32
1680
§17
1639, 1680
§33
2167
§21
6
§34
1680
§23
1680
§35
§§ 36, 37
1681
1651
Session Laws.
§§ 38, 39
§40
1675
1676
1890, c. 31, § 4
1676
§41
2162
1903, c. 11, § 33
1674
§43
1681
§35
1674
§§ 44, 45, 46
1681
c. 58, §§ 26, 27
1680, 2167
§48
1651, 1705
c. 61, § 11
1684
§49
1651
1904, c. 15, § 18
1680
§50
1192,
1223, 1859
1906, c. 10
488
§52
1290
1907, c. 29, § 79
1680
§54
2016
c. 43, § 11
1684
§55
1573, 1662
1909, c. 82, § 101
1270
St. 1913, c.
12, § 15
2150
1913, c. 13, § 14
2085
c.
24, §5
150
§25
803
c.
27, §4
2054
§30
1411
1914, c. 12, § 8
1674
British Columbia.
Albeeta.
Revised Statutes 1897.
St. 1906, c. 3, § 7, par. 54
1684
par. 55
1680, 1684
c. 52,
§134
1380, 1411
§9
1680
c. 67,
§102
2215
c. 24, § 17
1225, 1651
§228
2281
§38
1225
c. 71,
§20
1639, 1651,
1680,
1681, 1859
c. 28, §§ 64, 65
1680
§53
1154
c. 57, § 535
1680
c. 11]
,§48
1225, 1651
St. 1907, c. 13, § 30
1644
§58
1676
686
TABLE OF STATUTES CITED
Remsed Statutes 1911.
c. 78, § 150
1651
Session Laws.
1902, c. 22, § 5
§6
1903^, c. 15, § 69
§70
c. 17, § 99
§160
§231
§§ 292, 293
c. 18, § 2 1639,
1905, c,
1906, c.
1908, c.
c.
1909, c.
1910, c.
c.
1911, c.
1912, c.
1914, c,
c.
c. 40
§4
14, § 87
§89
§95
23, § 62
§118
§120
§155
2, §51
15, § 73
45, §2
7, § 163
30, §'89
33, § 102
17, §6
§93
9, §5
26, §2
1519
986, 1890
1380, 1411
1380, 1411
2215
2215
2281
2281
1651, 1680, 1681,
1859
986, 1890
1856, 1859
1519
1380, 1411
1676
1225, 1651
1225, 1651
2281
1681, 1684
488, 2281
1573, 1662
1681, 1684
2167
1680
2281
1680
150
1651
Manitoba.
Revised Statutes 1902.
916, 1856, 1890, 2124, 2218, 2220
Rule 164
1674
392
1859, 2219
402 A
1856, 2218
402 B
1856, 1859, 2218
407 A
2220
407 B
, 1856,2124,2218
421
1859, 2219
460 A
916, 1890, 2218
460 H
2218
101, § 202
2281
Session Laws.
1894, c. 11 6
1906, c. 17, § 1 2124
§ 2 916, 1856, 1890, 2218, 2220
§ 4 1859, 2192
1908, c. 18, § 1
c. 63, § 16
1909, c. 14, § 3
c. 19, § 2
1910, c. 28
c. 71
1912,c. 29, §6
c. 97, § 6
c. 101, § 10 ■
New Bruxswick.
Consolidated Statutes 1877.
c. 46, § 15
1908
1680
1859
2509
1225
803
2061
1644
488
1680
ConsoUMsd Staiutes 1903.
c. 94
2509
c. 127, § 38
1519
Session Laws.
1895, c. 16
1519
1905, c. 7, § 41 488
2281
1910, c. 43, § 3
1644
1911, c. 11, §§ 15, 16
2281
1913, c. 16, § 5
1669
Newpoxjndland.
St. 1904, c. 3, Rules of Court
28, 1856, 1859, 2218, 2219
par. 27 2124
30, par. 3 1519
32, par. 22 73
par. 23 986
33, 1380
par. 1 1411, 1710
par. 3 1681
par. 18 1411
par. 25 1387
par. 31 1710
34, par. 1 1710
par. 6 2162
par. 24 1710
46, par. 4 1862
par. 4r-6 1163
50, par. 29 1674
St. 1907, c. 19, § 27 1674
Northwest Territories.
Consolidated Ordinances 1898.
c. 21, R. 287 1387
687
TABLE OF STATUTES CITED
Nova Scotia.
1904, c.
10, § 21 6,
2223,
2252, 2281
c.
23, § 20
2374
Reused Statutes 1900.
§67
1640,
1680, 2167
c. 163, § 20
1225, 1651
1905, c.
13, § 30
2212, 2374
§21
1651
1906, c.
11, § 55
1639, 1680
§22
1859
§78
2212, 2374
§23
1651
c.
30, § 59, par. 12
1680
§24
1225, 1651
§231
2212, 2374
§25
1651
c.
31, § 26
1680, 2167
§26
1225, 1676
§27
1680,
2162, 2167
§27
1651, 1681
c.
47, § 16
1674
§30
1236
§18
2281
§34
488
1907, c.
34, § 119
1074
§35
488, 2065
1908, c.
4, §49
2281
- §36
488, 617
c.
28, §7
1644
§37
488, 2252
1909, c.
43, §§ 2, 3, 4
488
§38
488
§7
2281
§45a
2281
§§8,9
488
§48
2162
§10
§11
1908
2061
Session Laws.
§§ 12, 13
§§ 14, 15
2065
1828
St. 1908, c. 1, § 31
1644
§17
1263
1910, c. 28
1651
§18
1028
1913, c. 37
2281
§19
§20
986, 1270
905
Rules of Court 1900.
§21
1680
Ord. 32, R. 3
1519
§22
1684
Qrd. 35, R. 17
1404
§23
1680, 1684
R. 24
1387
§24
§25
2167
1684
Criminal Code 189S.
§26
§27
1223
1680, 1683
2375
§687
1418
§28
§31
1639, 1680
2167
Ontario.
§32
1681
Revised Statutes 1897
§33
§34
1225
1651, 2167
1225, 1651
c. '73, §5
2252, 2281
§§ 35, 36
1675
§20
905
§§ 37, 38
1676
§37
1676
§39
2162
c. Ill, § 1
6
§41
1681, 2167
c. 134, § 2
1573, 1662
§42
1681
c. 169, § 2
2061
§§ 46, 47
1225, 1651
c. 191, § 76
1074
1909, c
43, § 49
§51
1223
1290
Rules of Court 1897.
§52
2016
461
2124
c
82, § 20
196
483
1380, 1411
1910, c
• 26, § 7
2220
488
73
c
. 32, § 118
§119
1380
1519, 1710
Session Laws.
c
. 45, § 2
6
1891, c. 11
n9a
c
. 58, § 2
1573, 1662
1903, c. 19, § 255
2281
1911, c
. 36, § 2
2061
688
TABLE OF STATUTES CITED
1911, c. 41
§44
1680
1907, c. 12, § 29
1263
c. 169, §§ 2, 3
1141
§30
986, 1270
1913, c. 19
§70
2220
§31
1828, 2066
c. 43
§191
2281
§33
§35
789, 811
1828
Prince Edward Island.
§36
2016
§37
1908
Session Laws.
§38
1225, 2201
1889, c. 9,
§10
488. 905
§39
1676, 2162
1906, c. 6,
§25
1680
1908, c. 14, § 116
2167
§30
1644
1680
c. 38, § 30
1684
c. 12
488
1909, c. 9, § 62
1680
1907, c. 3,
§25
1270
2167
c. 16, § 15
2150
1909, c. 3,
§15
1669
1912, c. 42, § 16
1687
c. 6,
§1
§45
1680
1913, c. 36
1674, 2161
1910, c. 3
1380
1411
c. 64, § 123
1687
§46
2281
§124
1674, 2160
c. 8
§48
1380,
1411
c. 15
§25
1154
Yukon.
Consolidated Ordinances 1902.
Saskatchewan.
c. 1, § 8, par. 53
1684
Remsed Statutes 1906.
par. 54
1680, 1684
c. 165, § 8
Revised StatuUs 1909.
2573
§10
c. 6, § 20
c. 17 (Judicature),
Ord. XX, RR.
190-199
1680
1644, 1680
1859, 2219
c. 60, §§ 12a-d
1674
Ord. XXI, RR
. 200-224
1856, 2218
§16
1681
R. 223
2124
§27
2281
Ord. XXII, R.
234
259
1519
986
Session Laws.
Ord. XXVI, R
262
266
1380, 1411
1411
1906, c. 10
§21
1680
286
1387
c. 14
c. 24
§6
§38
1225
1684
1651
292
Ord. XL, R. 498
1380
1674
c. 28
c. 30
1907, c. 8
c. 12
§§ 61, 62
§194
§46
§§ 3, 4, 5, 6
§§7,8
§9
§10
§11
§§ 12, 13
§§ 14, 15
1680
1683
1669
1684
2167
1684
1680
1639
1680
1681
0. 39, § 28
c. 48, §§ 38, 48
c. 50, § 28
c. 56, § 53
c. 57, § 74
c. 61, § 11
c. 76, § 101
§102
§§ 110, 115
1225, 1651
1680
1680
1074
1684
1680
1680
1680, 1684
v2281
§ 16 1225,
§§ 17, 18, 19
1651
1681
1675
Session Laws 1904, 4 Edw.
VII.
§20
1681
c. 5, § 3
1684
§21
1223
1859
§4
1684
§§ 23, 24, 25
488
§5
1680, 1684
§26
2281
§6
1680, 1684
§27
905
1028
§§7,8
2167
§28
1028
§9
1680
689
TABLE OF STATUTES CITED
c. 5, § 10
1684
1909, No. 193, Spec. Sess., Aug.
25,
§n
1223,
1651
1680, 1683
- §5
1620
§12
1674
1911, No. 52, Feb. 20, § 1
2169
§13
1639, 1680
§^ 1225
, 1651, 1676
§14
1680
No. 119, Mar. 9, § 9
1674
§15
1681
No. 191, Apr. 4, § 2
2143
§16
1681
No. 259, Apr. 6, § 32
2215, 2281,
§17
1680
2363
§18
2162
No. 479, Apr. 4, § 29
2281
§§ 19, 20
1651
§21
1225, 1651
Alaska.
5 22
§23
1651
1681, 1683
1661
1681, 1859
C. C. P. 1900.
§24
1225, 1651
§669
987
§25
1651
§26
1225, 1651
Arizona.
§27
1676
Session Laws.
§§ 28, 29
1675
§30
1236
1905, No. 51, § 65
150, 1680
§31
1680
§70
150
§32
1290
1905, c. 51, §§ 66, 67
150
§33
2016
1907, c. 70, Mar. 21, § 18
1674
§34
488
1912, c. 4
150
§35
488
2065, 2218
§36
488
Arkansas.
§37
488, 2252
\
§38
488
Staivies 1894.
§39
2201
§1900
2061
§40
§41
905, 907
1028
Session Laws.
§42
1263
1905, c. 52 923, 987, 1021
§43
986, 1270
c. 326
803
§44
1828
p. 779, May 11, § 4
1352
§46
2162
1907, No. 77, Mar. 12, § 5
No. 260, May 6, § 1
1275
2199
UNITED
STATES
No. 398, May 27, § 12
1674
1909, c. 52, Mar. 5, § 2
2085
Alabama.
1911, c. 1, Spec. Sess., June 29,
\ 94 2281
Code 1897
§1795
987
California.
§1797
1290, 1300
Constitution.
§ 1816
1680
§5086
1680, 2375
Amend. 1911, Art. 6, § 4^
21
Session Laws.
Political Code 1872.
1903, No. 9, Feb. 2
488, 2239
§2169
2054
No. 32
7
§3083
1644, 1680
1909, No. 191,
Spec.
3GSSij
Aug.
25,
§12
2281, 2363
Penal Code 1872.
§15
2281
§2696
1644
§ 21, par. 13
2281
§§ 270, 270o
488
§22|
1205
§ 686 140S
, 1810, 1824
§29§
2281
§869
1669, 1824
690
TABLE OF STATUTES CITED
872 ,
1382
1907 c. 392, § 2 912, 1387, 1389, 1411
882
1382,
1387
, 1411
§ 5 1382
1025
2277
c. 394 1837
1103a
2042
c. 395 2210
1108
2061
1911, c. 14, § 55 2281
1110
2044
1913, c. 157 2199
1118
2495
1322
488
Colorado.
1333
2199
^ 1335-
1341
1382
General Statutes 1883.
Code of Civil Procedure 1872.
§ 1056 2408
§ 1339 7
§ 1340 2474
§ 1870 1938
§ 1881, par. 1 , 488
par. 2 2292
§ 1883 1909, 1910
§ 1968 2042
§ 2021 1411
§ 2022 912, 1387, 1389, 1411
§ 2024 " 1414
§ 2025§ 1382
§ 2032 1387
§ 2033 1382
I 2034 1387
§ 2061 2056, 2094
§ 2064 2200
1885, c. 43
1893, Feb. 23
1903, c. 225, i
c. 255
c. 364
c. 532
1905, c. 95
c. 107
c. 134
c. 139
c. 498
c. 532
c. 540
c. 570
1906, Spec,
1907, c. 68
c. 100
c. 230
c. 236
Session Laws.
1672
§ 32 2281
11 1672
1382
2054
2042
■2281,2281a
1644, 1680
1411
488
1644
2044, 2061
1382, 1387, 1398, 1411
1382
1., c. 52
c. 55, § 1
§2
c. 60
1705
1275
1660
1660
488, 2292
7
488
1644, 1680
§3642
§7267
§7274
Revised Statutes 1908.
1519
488, 1409
2292
Session Laws.
1903, c. 77
c. 181, § 159
§160
§172
1905, c. 100, § 14
1907, c. 37, § 4
,C. 112, § 21
c. 252
1909, c. 1
1911, c. 90, §§ 1, 7, 8
c. 109
c. 179, ,§5
c. 229 '
c. 230
1913, c. 47, §§ 1, 7, 8
1074
1681
1859
1681
1640, 1680
1684
1644, 1680
1519
1676
1680
1684
488
488, 1409
2292
150, 1680
c. 30, § 33
§964
§1068
§1071
Columbia (Distmct).
Compiled Statutes 1894.
Code 1901.
2067
7,2245
2245
1681
Connecticut.
General Statutes 1888.
§§ 1060-1062
§ 1099
2218
2218, 2219
§710
§§ 732-737
§981
General Statutes 1902.
1856, 1859,
2218, 2219
2218, 2219
1519
691
TABLE OF STATUTES CITED
Session Laws.
1889, c. 22 1856
1859, 2219
1907, c. 192
67
1909, c. 49
1818
1911, c. 128, § 9
2281
c. 175, §§ 1, 2, 3
1521
Delaware.
Session Laws.
1887, c. 230
488, 2239
1907, c. 231
1651
c. 243
1644, 1680
1909, c. 66, § 10
1644, 1680
■ c. 218, § 4
1651
1911, c. 69
1671, 1680
c. 244, § 6
1644
c. 254
1651
1913, c. 84, § 8
1644, 1680
c. 85, § 14
1644, 1680
Florida.
Constitution 1885.
Art. 16, § 21 1225, 1651, 1676
Revised Statutes 189S.
11087
il096
i 1121
il973
i2863
i§ 2867, 2875
,2901
,2905
,2918
1163
522
2016
1651
2245
2201
1850
580
1163
General Statutes 1906.
,1523
,3148
3558
• 3975
1668
2509
1205, 1680, 2044
580
Session Laws.
1891, c. 4029
1893, c. 4120
1903, c. 5132
c. 5162, p. 97
c. 5191, p. 134, § 3
1905, No. 29
No. 33
No. 45, § 2
2243
2201
2201
2143
1671
2281
1651
2281
1905, No. 81,
§9
1672
1907, c.
5688
1205,
1680, 2044
1909, c.
5897
1668
c.
5935,
§10
1674
1911, c.
6223
21
1913, c.
6482
Georgia.
Code 1896.
1275
§3034
1078
§3621
1676
§3630
1225
§4250
1681
§5180
1778
§5182
1519
§5214
1681
§5237
1681
§5272
2239
§5285
1959
§5295
1013
§5314
18
§5773
Code 1910.
1404
Vol. II,
§379
488
Criminal Code 1896.
§629
2281
§989
2511
§1001
1404
§ 1011, par. 4
2239
§1027
987
Penal Code 1910.
§715
1354
§ 1037, par. 4
2239
Session Laws.
1903, p. 90, Aug. 15
1354
1906, c. 450, § 3
2281
c. 451, § 1
2281
1908, No. 566
1681
No. 568 803,
1382, 1411
1910, No. 309
1519
1911, No. 207
488
Hawaii.
Revised Laws 1906.
§§1159,2214'
1644
692
TABLE OF STATUTES CITED
Session Laws.
1905, No. 19
No. 52
No. 64, § 3
No. 67
1907, No. 8
No. 79
No. 119, § 68
1909, No. 15
No. 69, §§ 3, 4, 5
1911, No. 23
No. 64
No. 96
1913, No. 42, § 6
No. 83, § 6
No. 86
No. 101, § 6
No. 157
488,
i 1179
I 7668
I 7871
Idaho.
Revised Statutes 1887.
Session Laws.
1899, Feb. 6, § 2, p. 125
1905, Mar. 7, p. 352
p. 416
1909, Mar. 13, p. 334
1911, c. 15, Feb. 18, p. 30, § 10
c. 191, Mar. 9, p. 631, § 21
Illinois.
1671
1073
1644
16S9, 1608
1680
1644
1639, 1680
1644
1651
1644
1681
1644
2259, 2281
2063, 2085
1644
1141, 2281
1639
150
1851
2059
1851
7, 150
2281
916, 1890
2281
1644, 1680
Revised Statutes 1874.
c. 24, § 65
c. 30, § 12
§35
c. 38, § 279
§426
c. 51, § 5
§10
,:. 109, § 2
c. 148, § 4
§7
1680, 1684
2110
1225
987
987
2336, 2341
1684
1225
1382
1349
Session Laws.
1897, May 21, §§ 7, 18
1901, May 10
1903, pp. 121, 122
1705
1072, 1354
1705
693
1905, May 18 (Municipal Court),
§ 32 1856, 2218
§ 33 916, 2218
§ 54 2572
(Primary Elections),
§ 119 2572, 2577
1907, Feb. ll, p. 56 1375
May 17, p. 213 1326
May 28, p. 376 1651, 1676
June 3, p. 443 1859
§ 64 2595
1909, June 4, p. 145, § 2 1674
Indiana.
Revised Statutes 1897.
§519 \ 987
§§ 1004, 1008 488, 2061, 2063
Revised Statutes 1901.
§2779
1736
Session Laws.
129, p. 219
158, p. 481
c. 168, „
169, p. 584- §
1905, c. 53, p. 83 § 12
§19
§54
§3
§239
§76
103
§112
§119
§218
§235
§§ 236,
§238
§239
§241
§242
§244
§247
§250
§253
§260
§262
§455
1907,
1911,
1913,
c. 31
c. 243, § 6
§11
"c. 282, § 49
c. 174
c. 192, § 8
c. 312
2281
1680
2281
- 2281
851, 860
2079
2360
1851
1851
2596
488, 2272
237 2281
1339, 2026, 2044
831, 923, 2071
488
1382, 1398
2061
2039
2281
2281
1873
1800
2085
2531
1856, 1859
2281
2281
488, 2239
2281
2008
TABLE OF STATUTES CITED
Bums' Annotated Statutes 1908.
,530 \ ' 987
Indian Tebeitory.
Stattdes 1899.
§1974
Iowa.
Code 1897.
620
§ 245a (Suppl. 1902) 1387,
1388,
1413,
1415
§§ 3610, 3611
1856
,2218
§§ 4613, 4614
923
§4623
797
§4646
1681
§4651
1684
§4688
1382
§4944
1620
§2056
2509
§5227
1667
§5258
■
1669
Session Laws.
1898, c. 9, § 1
1387, 1409,
1413
,1669
1904, c. 8, § 8
1671
1906, c. 159
1239
1907, Feb. 20
1354
1910, c. 128
1354
1911, c. 3
1671
c. 105
'
1678
c. 188, § 4
1851
1913, c. 15
2281
c. 21
2281
c. 272, § 5
1710
c. 296
Kansas.
797
General Statutes 1897.
c. 97, § 3
1225
c. 102, § 218
2272
c. 136, § 4
1684
c. 265, § 10
2281
GeTieral Statutes 1901.
§5401
2595
§5651
1859
General Statutes 1909.
§5915
620,
2245
2338
Code of Civil Procedure 1895.
§215 2272
Code of Civil Procedure 1909.
§ 320 488
§ 321 620, 2245, 2338
Code of Criminal Procedure.
§ 209 1859
Session Laws.
1901, c. 233
2195
1903, cc. 387
,388
488
1905, c. 209
2281
c. 323
1186,
1225,
1226,
1651, 1680
c. 324
1225, 1651
c. 338,
§2
2595
c. 340,
§10
2281
c. 494,
§1
1413,
1669, 2098
c. 526,
§1
1304, 1411
1907, c. 168
1680
c. 259
1856,
1859, 2281
c. 373
1354
1909, c. 113
1856, 1859
c. 114
1570
c. 164,
§7
2281
c. 179,
§3
1206
1911, c. 163,
§6
488,
2063, 2085
c. 228
488
c. 237,
§12
2281
c. 238',
§17
2281
c. 248,
§17
1570
c. 296,
§15
1644
1913, c. 224,
§6
1644
c. 244
2072
Kentucky
•
Statutes 1899.
§1638
1644
§1642
1684
§1973
2281
§4643
1669
c. 81, § 17
1352,
1639,
1664,
1672, 1674
Statutes 1903.
§§ 470, 472
2433
§2725
1672
§3760
1352,
1639,
1664,
1672, 1674
§4545
1680
§4643
1398
694
TABLE OF STATUTES CITED
Code of Criminal Procedure
1896.
Maine.
§120
§272
1851
2354
c. 61, §§ 11,
Revised Statutes.
12
1644
Code of Civil Procedure 1895.
c. 109, § 4
1411
§128
§693
§596
§601
§606
§4
2596
944
905
1840
617
488
1905, c. 58
1907, c. 99
1909, c. 159
c. 161
Session Laws.
1675
1644, 1680
1411
1644, 1680
Session Laws.
Maryland.
1904, c. 79
c. 127
1387, 1412
1639, 1706
Public General Laws 1888.
1906, c. 27
1680
Art. 35, S 2
488
1908, c. 67, § 1
987
§36
1382
1910, c. 37, § 21
1644
75, § 23,
subsec. 108
2596
1912, c. 103
488
c. 135
831, 851
Public General Laws 190^.
Louisiana.
Revised Statutei 1876.
Art. 27, § 440
Art. 33, §§ 174, 175
35, §2
1851
2281
488
§1436
1676
§3
§4
1127
2239, 2245
Rerdsed Civil Code 188S
§36
1382
§1655
§2402
Revised Laws 1897.
§611
2008
612
1382
1874, c. 386
1904, c. 56
c. 661
Session Laws.
1127
2572
488, 1126
Session Laws.
1906, c. 239
1908, c. 122
1382
2281
1886, c. 29
488
c. 487
1665
1894, No. 49
370
1912, c. 21
1684
No. 67
1908
1896, No. 113
1898, No. 190
1902, No. 68
20, 246
612
612
i
Massachusetts.
Revised Laws 1902.
No. 185
1904, No. 41 488
1906, No. 207
1908, No. 40
No. 105
No. 109
No. 126
No. 247
488, 580
, 580, 2239
2065
1674
1411
851
916
1413
c. 159, §§ 15, 16
c. 173, § 57
§§ 57-67
§63
c. 175, § 20
§21
§24
1859
1856
1856, 1859
1856
2241
488, 987
916
1910, No. 176
No. 234
1912, No. 105
No. 182
No. 2t2
1382, 1411
1660
488
1665
2373
1898, c. 535
1905, c. 288
c. 330
Session Laws.
1576
7
1639
695
TABLE OF STATUTES CITED
1907,
1908,
1909,
1911,
1912,
1913,
1914,
c. 225
c. 269
c. 206
c. 225
c. 593
c. 276
c. 442
c. 81
c. 288
c. 401
c. 716
c. 815
c. 406
2167
1639
1856
1856, 1859
1856
1856
1639
488, 987
1519
1640
1710
1856, 1859
987
Michigan.
Compiled Laws 1897.
c. 282, § 101 (original numbering)
§ 4617 (editor's numbering)
1897, § 10136-142
§3846
§ 10136
§§ 10144, 10145
§ 10181
§ 10188
Session Laws.
1899,
1901,
1903,
1905,
1907,
1911,
1913,
No. 183, § 25
No. 255, § 11
No. 239
No. 30
No. 136
No. 175
No. 144
No. 182
No. 312
No. 191
No. 234
No. 307
No. 2
No. 376
488
2390
1415
2374
1411
1681
2380
1411
2264
2281
488, 2380
562, 1907, 2203
488
2281
2281
1681
2380
916, 1890
2259, 2281
1658
[5659
I 7705
Minnesota.
General Statutes 1894.
Revised Laws 1905.
§§ 2140, 2141, 2143
§4710
§4719
916
1633
1640
2524
1519
-
Session Laws.
1905, c. 47
811, 1393
c. 192
2281
c. 193,
§§1,2
1705
c. 305,
§35
1225, 1651
§38
2167
§42
1225, 1651
1907, c. 191,
§30
1680
1909, c. 127
1680
0.251
1519
1911, c. 200
1671, 1680
c. 250
1644
1913, c. 251
1644
c. 370
1651
c. 579
1644
Mississippi.
Annotated Code 1892.
I 1653
I 1808
2413
,1985
,5018
Code 1906.
Session Laws.
1912, c. 138, § 16
c. 139, § 9
c. 149, § 5
c. 251
1385
2508
1681
2509
2259, 2281
1674
1674
1644
2259, 2281
Missouri.
Revised Statutes 1899.
§§ 265-267
§865
§ 2635o
§3094
§3098
§3149
§ 41646
§ 4635-
§ 4655a
§4656
§4680
§8983
§i
Revised Statutes 1909.
§§ 5033, 5056
§ 10311
488
21
1432
1680
1680
1032
1684
1681
1890
2336
2277
2281
2281
1404
2281
696
TABLE OF STATUTES CITED
Session Laws.
1895, )p. 284
1905, Mar. 10, p. 208
Mar. 23
Apr. 6, p. 307
Apr. 15, pp. 148, 150
1907, p. 245, Mar. 6
p. 245, Mar. 16
p. 271, Feb. 27
p. 382, Mar. 19
p. 383, Mar. 19
1909, p. 99, June 4, § 3
p. 538, May 6, § 21
1913, p. 225, Mar. 25
p. 290, Apr. 7, § 24
p. 549, Mar. 29
p. 556, Mar. 17
2277
1684
1705
1890
1705
1432
2060, 2066, 2380
1705
2281
2281
488
1644
1818
1640
2281
2281
2259, ;
Montana.
Penal Code 1895.
§2097
§§ 2480-2491
Code of Civil Procedure 1895.
§1081
§7887
§7891
Revised Codes 1907.
Session Laws.
1907, c. 109
c. 113
1909, c. 66
c. 94
1913, c. 41
c. 52
c. 86
1225,
1163
1382
1164
1404
488
1382
1163
488
1674
488
2281
1651
Nebraska.
Compiled Statutes 1899.
i5343tZ
■ 5905
2281
488
Cohhey's Annotated Statutes 1903.
§§ 4817, 5008, 5025, 5026
1681
Compiled Statutes 1903.
c. 73, § 14
2165
Session Laws.
1905, c. 157
c. 162, §§ 21, 22
c. 172
1907, c. 90, § 2 (k)
1911, c. 177
1913, c. 43, § 2
c. 68
c. 75
c. 154, § 152
c. 179, § 19
c. 241, § 14
Nevada.
General Statutes 1885.
§3401
§3405
1683
2281
488
2281
488
1665
1644
1710
2281
2281
1684
488
2395
Session Laws.
1905, c. 113
1909, c. 44, § 13
§17
c. 77, § 1
c. 80
1911, c. 179
c. 199, § 20
1913, c. 272
New Hampshiee.
Session Laws.
1903, c. 134
1905, c. 60
1911, c. 133, § 24
1913, c. 137, § 3
2395
1669
2281
1275
488
488
1644
488, 2085
1326
1326
1680
1275
New Jersey.
Revised Public Laws 1900.
p. 363, § 5
p. 375
2235
2240
1890
General Statutes 1896.
District Courts, Apr. 14, § 158
Orphans' Courts, § 20
1828
1681
Session Laws.
1899, Mar. 21
1900, c. 150, §§ 2, 5
§27
1903, c. 140
6
1684
2239
1680
1856
697
TABLE OF STATUTES CITED
1904, c. 117
1651
§8416
1573
1905, c. 199
1684
§870
6, 1856
1906, c. 206, § 6
987, 2281
§871
1856
c. 208, § 5
987, 2281
§872
1856
c. 250
1651
§881
1387
1909, c. 109, § 10
1644
§885
1387
c. 153
1681
§911
18
1910, c. 274, § 15
1644
§931a
1680
1911, c. 188, § 32
2281
§9316
2451
c. 201, § 33
1674
§931c
1678
c. 207
1828
§§ 935, 936
1651
c. 279
1856
§937
1
1676
1912, c. 199, § 15
1644
§941a
1684
c. 231
' 1859
§946
1651, 1676
c. 260
1680
§956
§961a
1680
1154
Rvlea
o/ Court.
§9616
1290
Practice Act Supplement
1859
§961e
§961ci
2159, 2432
2016 2024
Schedule A, Rules of Court No.
66 1859
§961e
1573, 1664
§961/
1639
New Mexico.
§975
* 1651
§ 1339
2052
Constitution 1910.
§§ 1688/
toi
1387
Art. II, § 14
§15
§16
811, 1397
2252
2039
§ 2513a
§2540
§2618
§2629
1818
1310
1185, 1310
1^81
Session Laws.
Code of Criminal Procedure 1881.
1901, c. 58
488
1905, c. 38, § 3
1225, 1651
§8
1398
c. 79, § 8
1680
§221/
7, 1398
1907, c. 26
488
§2226
803
c. 49, § 10
1
1680
§392
1828, 2066
, §71
1680
§393a
488
c. 84, § 3
2200
§395
831, 841
1909, c. 76, § 3
1680
§398a
1432
c. 83, § 29
2281
§482o
1681
0.98
488
§514a
1674
1912, c. 28, § 4
150
c. 78, § 6
2281
Penal Code 1881.
c. 82, § 76
1680
§101o
2043
New York.
Consolidated Laws 190i
).
Code of Civil Procedure 1877.
c. 18, St.
1909,
c. 23,
§105
1676
c. 20, St.
1909,
c. 25
2281
§735
2596
c. 27, St.
1909,
c. 32,
§93
1413
§803
1859
c. 31, St.
1909,
c. 36
2281
§830
1387, 1389
1413, 1669
c.40,St.
1909,
c. 88,
§395
2281
§834
2380
§583
2281
§836
2388
§2177
2061
§841a
665, 1674
§2446
2281
698
TABLE OF STATUTES CITED
c. 45, St. 1909, c. 49, § 216 1644, 1672
§ 240a 439
§ 296 1680
§ 391 1644
c. 50, St. 1909, c. 52, § 311 1676
c. 88, § 2444 488, 987, 1270
Greater New York Charter.
i685
488
1913, c. 223
c. 236
c. 395
c. 412
c. 542
c. 559, § 11
c. 597, § 1
c. 619
439
2281
1573
1185, 1310
1413
1672
1684
644
North Carolina.
Session Laws.
Revision 1905.
1880, c. 36
2025
§300
-
1680
1892, c. 279
1828
§§ 327-345
1660
1893, c. 595
1387, 1413, 1669
§329
1290
1899, c. 352
1387, 1413, 1669
§539
2496
1905, c. 331
2380, 2382, 2385
§569
1275
c. 450
1225
§860
1062
1906, c. 324
2043
§§ 864-872
1856
1909, c. 49,
5 22
1644
§865
916, 2218
c. 65, Feb. 17
665
, 796, 1154, 1290,
§868
916
1674.
1680, 1684, 2159,
2432, 2451
§§ 870-872
§1023
488
1225, 1651
c. 65, Feb. 19
1573, 1639, 1664,
§1298
2201
1818, 2016
§1351
2218
c. 65, § 3
1387, 1856
§1496
1828
c. 66, § 1, p. 85
488, 1432, 1681
§1564
488, 2067
p. 87
1674
§1592
1684
c. 240,
§61
48», 987, 1270
§1593
1680, 1684
c. 425
1678
§1594
1271, 1680,
1684, 1702
c. 514,
§3
2281
§1595
1680
c. 517
1519
§1596
1680
c. 524
2061
§1597
1239
c. 578
1681
§§ 1598, 1599
1225, 1651
1910, c. 394
2281
§1603
1681
c. 395
2281
§§ 1607, 1608,
1609
1681
c. 480,
§7
1684
§1616
1215,
1680, 1681
1911, c. 105
1310
§1617
1680
c. 279
1644
§1618
1681
c.,647
2281
§1619
1225,
1651, 1681
§25
2252, 2281
§1620
2281, 2292
c. 764
1387,
1389, 1413, 1669
§1621
2380
c. 781
1856
§§ 1622-24
1519
c. 859
1387
§1625
1519
1912, c. 97
1680
§1626
1698
c. 312
2281
§1628
488
c. 390
7, 803, 1398
§1630
48S
c. 420
488
§§ 1631, 1636
488
c. 444,
§4
2252, 2281
§§ 1632, 1633
488
1913, c. 71
1680
§1634
488,
2272, 2276
c. 86
1859
§1635
488, 2252
c. 140
1387
§1637
2281
c. 208
1676
§1638
2281
c. 209
1676
69
§1645
9
1411
TABLE OF STATUTES CITED
§1652
§1654
§ 1655
§ 1656
§1657
§1658
§1688
§§ 2354, 2355, 2356
§2360
§2459
§2645
§ 2661
§2803
§3113
§3115
§3121
§ 3127 1304,
§3130
§^133
§3193
§3195
§3196
§3201
§3205
§3241
§3360
§3950
§ 3951
§4280
§4331
§4338
§4407
§4684
§5070
§7253
803, 1382
1411
1411
1859, 2219
2219
2596
2281
1828
1828
2281
2509
1275
2203
2051
2051
1413
1310, 1320, 2050, 2051
1681
1658, 1681
1326
1837
1326
2281
1375, 1413
1851
2061
1672
1672
2281
1640
1640
987, 2215, 2281
1680
1680
Session Laws.
1897, c. 109
1899, c. 131
1907, c. 779
1911, c. 175
1913, c. 52
c. 69
(5644
(8034
(7252
(9383
North Dakota.
Remsed Codes 1899.
Revised Codes 1905.
2496
2496
1620
1680
2016
1676
1210
1851
916
2282
Session Laws
1905
c.
9, §5 .
c.
10,
112
1907
c.
2
c.
21
c.
72
c.
119
c.
139
c.
270,
§21
1909
c.
72
c.
109
c.
128,
§17
Ohio.
General Code.
11497
11540-1
12412-1
12824-1
13031-11
§ 13668, 13669
1674
1674
1705
916
1665
488
1513
1644
916
488
2281
916
1388
1433, 2281
2281
1620
1382
Annotated Remsed Statutes 1898.
(4427-6
i 5242o
J7284
[7285
Session Laws.
1898, Apr. 19, § 6o
1904, Apr. 23, p. 332
1906, Apr. 2, p. 313
1908, p. 20, Feb. 26
1909, p. 49, Mar. 12
1910, p. 100, Apr. 14
p. 139, Apr. 28
p. 210, May 13
1911, p. 132, May 18
1913, p. 189, Apr. 23
p. 190, Apr. 23
p. 443, May 8
1354
6
488
2281
2281
2281
2281
228C
488
2281
916
1433, 2281
• 21
1620
1388
1382
Oklahoma.
Constitution.
Bill of Rights, § 27 2252, 2281a
Statutes 1893.
§1189
1304
700
TABLE OF STATUTES CITED
Statutes 1903.
t 68, art. 10 2034
Revised & Annotated Statutes 1903.
I 4574
i4575
1530
1225, 1239
Compiled Laws 1909.
i 6623 1382
1 6644 1853
i 6691 1851, 1853
,5876
,5882
Revised Laws 1910.
Session Laws.
1908, c. 75, Art. II, § 5
1909, c. "83, Art. I, § 5
§§ 12, 13
c. 41, § 4
1913, c. 68
Oregon. ^
Codes and General Laws 1892.
2497
2239
1275
1660
1705
1304
1382
§856
§1134
§731
§597
§727
§932
§3733
1909, 1910
2065
Codes of Civil Procedure.
Lord's Oregon Laws.
1680
1239
1481
1669
1640
Bellinger & C.'s Annotated Codes & Statutes.
§755
§785
§819
§826
§835
1905, c. 51
c. 106
1907, c. 117
c. 174
Session Laws.
1680
41
1676
1411
1382
1680
1674
1239
1651
1909, c. 3, § 52
2281
c. 42
1676
c. 58
1411
c. 199
1680
c. 226
1239
1911, c. 12
1680
c. 67
1239
c. 128
1239
c. 148
1382
c. 172
1680
c. 279, § 59
2252
2281
1913, c. 184, § 47
1640
Pennsylvania.
!
Constitution 1874.
Art. Ill, § 32
2281a
2282
Digest of Laws 1898.
Witnesses, § 11
2235
Session Laws.
1881, May 11, Pub. L. 20
2452
1887, May 23, § 2
488
§7
916
Pub. L. 158, § 26
2235
1893, Pub. L. 345
2240
June 8, § 4
488
1895, May 15, § 1
2016
1905, No. 221, § 21
1644
1907, May 23
488
No. 146
488
1909, No. 90, §§ 2, 4
1828
§3
935
1828
No. 126
488
No. 128
488
No. 167
1382
1411
1911, Mar. 15, p. 20
2276
Mar. 30, p. 35
916
May 11, p. 259
1676
p. 269
488
June 8, p. 709
1411
p. 720
488
1913,'Mar. 27, p. 14
488
No. 136
2218
No. 241
2281
No. 300
2016
Rhode Island.
Session Laws.
1905, § 399
2008
2016
1911, c. 714
2281
701
TABLE OF STATUTES CITED
South Carolina.
Tennessee.
Code 1902.
Session Laws.
§ 1538
1674
1897, c. 14, § 6
2281
§§ 2051, 2888
1680
1909, c. 87
c. 160
1382, 1681
803
Session Laws.
c. 384
1913, c. 30 1
1680
1644
St. 1866, Dec. 20
2110
2d Extra Sess., c. 1
2281, 2055
St. 1905, Feb. 22
206
2061
1905, No. 457
2203
Texas.
1906, No. 97
1674
190^, Feb. 16
1269
Revised Civil Statutes 1895.
1909, No. 126, § 13
1674
§ 2274a
1382
No. 128
1382
1411
§2282
1382
1910, No. 361 1210,
1911, No. 70, § 7
No. 88
1240
2132
1644
1684
§2284
§2291
§ 2312 7, 1225, 1651,
1382
1382
1676, 2143
No. 53
1219
1269
§7160
150
South Dakota.
Code of Civil Procedure
Art. 790
831
Statutes 1899.
§533
1290
Penal Code 1895.
§713
63,246
Statutes 1903.
§6351
21
c. 154, § 3, p. 179
1620
Session Laws.
1903, Mar. 31, c. 94, p. 119
2281
Revised Code of Civil Procedure 1903.
1905, c. 59, § 1
1832
§486
488
c. 76
1382
§529
1681
1907, c. 7
2281
§533
1651
c. 8
2281
§924
2408
c. 62
1644, 2082
§961
1239
c. 91
1381
§§ 970-973
1676
c. 118
c. 165 7, 1225, 1651,
835
1676, 2143
Penal Code 1903.
1913, c. 69
Spec. Sess., c. 31
150
2056, 2281
§802
1411
§803
488
United States.
•
Session Laws.
Constitution 1787.
1905, c. 125, § 8
1680
Amend. IV
2183, 2264
c. 149
1239
V
2252, 2264
1907, c. 3
1676
VI
1398
c. 246
1644
XIV 1398,
1404, 2252
1909, c. 224, § 11
2281
1911, c. 148
1681
Revised Statutes 1878.
c. 249
488
§721
6
c. 256, § 28
1680
§724
2200, 2219
1913, c. 371
488
§858
6,488
702
TABLE OF STATUTES CITED
§ 859 2259
§ 860 7, 852, 1040, 1066, 2264, 2276,
2281, 22810, 2282
§ 861 6, 1411, 1856
§862 6
§ 863 1381, 1856, 2200
§ 866 6, 1381, 1856
§ 867 ; 1856
§ 869 ' 2195
§ 876 1856, 2207
§ 882 2143
§ 886 1680
§ 891 1680
§ 892 1684
§ 905 1681
§ 906 1680
§§ 913, 918 6
I 1078 488, 516
§ 1079 . 488
§§ 1081, 1082 1411
§ 1083 1381
§ 1084 1828
§ 1624 1398
§ 3167 2375
§ 3240 1680
§ 3318 1240
§ 3330 1240
§ 4597 1352
§ 4915 1417
§ 5209 2258
Session Laws.
1884,
1887,
1891,
1892,
1893,
1894,
1898,
1900,
1901,
1903,
July 5, c. 220
Feb. 1, §§ 9, 12
Feb. 4, §§ 8, 10
Mar. 3, c. 551,
Mar. 9, c. 14
Feb, 11
Aug. 18, c. 301,
June 13, c. 448
July 1, c. 541
%7
§27o
§41
§70
Dec. 21, o. 28,
c. 163
c. 541
Mar. 2, c. 809
Feb. 11
Feb. 14
Feb. 19
Feb. 25, c. 755
1354
2281a
2257, 2281
§ 8 1641, 1672
1381, 1856
2259, 2281
§ 1 1354
1235
(Bankruptcy),
2276, 2281, 2282
6
2207
2264
§§ 19, 20 1352
1681
803
987
2281
■ 2259, 2281a
2259, 2281
2259, 2264, 2281,
2281a
1903,
1904,
1906,
Mar. 3, c. 1012 1354
April 19, c. 1396 1239
c. 1398 1186, 1239, 1676, 2373
1907,
1909,
1910,
1911,
1912,
Mar. 21, J. R. 11
Mar. 23, c. 1131
June 28, c. 3585
June 29, c. 3591
c. 3592
c. 3608
June 30, c. 3920
Feb. 20, § 3
Feb. 16, c. 130
Mar. 4, c. 320
2281
488, 2085
1651
1680, 1684'
616, 1672
6,488
2259, 2281, 2281a
488
1381, 1411
1674, 1676
Mar. 4, c. 321, No. 350, § 93 1639
Mar. 26, c. 107, 61st Cong.
p. 263 488
May 7, c. 216, No. 168, 61st
Cong., p. 352 7, 852, 2281
Mar. 3, c. 231 5, 488, 1381, 1411,
1828
Feb. 5, c. 28 488
No. 46
No. 6
No. 46
No. 46-48
No. 51
No. 53
No. 54
No. 58
No. 62
No. 78
Rides of the Supreme Court.
Admiralty Rules.
Equity Rules.
6
6
1411, 1417
2195
1381
1381
1856, 1859
2195
1828
Utah.
Revised Statutes 1898.
§3467
§5015
Compiled Laws 1907.
§ 3414
§3431
§4355
§§ 4513, 4670
§ 5014
Session Laws,
1905, c. 41, Mar. 7
c. 108, Mar. 9, § 17
c. 120, Mar. 16, § 20
1383
2276
488
987
2513
1669
488
1382, 1411
1639, 1680
1644, 1680
703
TABLE OF STATUTES CITED
1909, c. 37
488
1910, c. 28
1644
c. 39
488
c. 334
1681
1911, c. 62
488
1912, c. 152
1651
c. 105
488
c. 235
1664, 2143
c. 106
1680
1914, c. 100
2143
c. 109
488
c. 313
562
1913, c. 66
1674
Washington.
. Vermont.
Annotated Codes and Statutes 1897.
Statutes 1894.
§1589
488
§6009
1859, 2319
§1600
1639
§ 6047
1859, 2319
§2367
1681
§6113
1859
§3303
1644
§3765
1680
Remington <
& Bollinger's Annotated Codes
§§ 5523-29
2362
and Statutes 1909.
Session Laws.
§2290
987, 1270
§§ 2304, 2443
2061
1900, No. 36
1681
§6297
1678
1904, No. 24
1680
No. 60
488, 616
Penal Code 1909.
No. 67
1680
1906, No. 75
2200
§38
987, 1270
No. 118
1680
§52
2061
1908, No. 64
488
§191
2061
No. 80
1644
1910, No. 85
488
Session Laws.
No. 86
1639
1905, c. 26
1387,
1413, 1669
No. 158
488
1907, c. 60
2281
No. 221
2363
c. 83
1644,
1912, No. 259
1684
c. 103
c. 170
488, 2085
2061
Virginia.
1909, c. 249,
§ 38 488, 987, 1270
Code 1887.
§39
§54
2281
1411
§145a
2281
§55
2191
§1345
1674
§78
2281
§2229
1644
§182
2061
§2260
2067
§228
2281
§3334
1674. 1680,
1681
2162
§316
2281
§3671
263
1911, c. 117
2281
§2501
1651
1913, c. 100
2061
§3899
488
c. 120
c. 126
2281
1413, 1669
Session Laws.
c. 127
1620
1902, Extra, c.
22
488
2281
1903, Extra, c.
486
1651
West Virginia.
1904, c. IS, §"3
1411
Extra, c.
565
1674
Code 1899.
1906, c. 20
1684
c. 29, § 115
1974
1908, c. 59
228, 231, 263
c. 64, § 8
2067
c. 338
1674, 1680,
1681
2162
c. 73, §§ 2, 3
1651
704
TABLE OF STATUTES CITED
c. 152, § 20
§ 3075, 3076
1905, c. 36
1907, c. 39
c. 76
c. 82
1909, c. 44
1911, c. 22
c. 23
Code 1908.
Session Laws.
852
1651
150
2016
2143
160
803
488
Wisconsin.
Statutes 1898.
§186
§§ 1024, 1024a
§ 1435/-22
§ 1436
§ 2238a
§ 2276a
§3959
§4068
§4069
§4075
§4078
§ 4078d
§ 4079TO
§4086
§4096
§ 4096, subd. 3, 6, 7
§4097
§4102
§4141
§ 4141a
§4145
§4163
§§4186-9
§4201
§4352
§4475-2
§4583
§4736
1680
1680
2281
569
1710
1674
2444
916
488, 1856
2380, 2385
2281
2385
1050
1382, 1411
1416, 1856
1856
1856
1382
1330
1387, 1413
1681
1678
1655
406
2281, 2385
2281
2281, 2385
196
Session Laws
§§ 1024, 1024o
1901, c. 85
1903, c. 426
1905, c. 131
• c. 149
c. 237
c. 447, § 1
§2
1907, c. 197
c. 271
c. 276
c. 369
1909, c. 107
' c. 196
c. 219
C.302
c. 528
1911, c. 65
c. 123
c. 180
c. 231
c. 232
c. 291'
c. 322
c. 576
1913, c. 246
c. 336
c. 486
c. 773
168a
2281, 22810
569
488
2281
1382
2259, 2281
2259, 2281
488
916
1678
1856
1387
1674
1680
1710
2281
1413
1050
1681
1856
1856
916
2380, 2385
488, 2085
1416
1382, 1411
1674
2281
§3682
Wyoming.
Statutes 1899.
Compiled Statutes 1910.
488
§2602
150
§2604
1225, 1651
Session Laws.
1907, c. 24
1680
1909, c. 145
488
c. 152
1669
1911, c. 87
1681
1913, c. 126
150, 1225, 1651
705
TABLE OF CASES CITED
TABLE OF CASES CITED
Aalholm V. People
Aaron v. U. S.
Abernethy v. Yount
Abhan v. Grassie
Abbott V. Terr.
V. Walker
Abraham v. Miller,
Abrahams v. WooUey
Achilles V. Achilles
Acker M. & C. Co. v. McGaw
Ackerman v. Crouter
Acme C. P. Co. v. Westman
Adair v. State
Adams v. Clark
V. First M. E. Church
V. Gillig
V. Herald Pub. Co.
SECTION
1491
2311
2013
2486,
2497
1049, 1082, 1567
2498
2340
1897
1062
2462
1722, 2509
2501, 2511
1350
1958
2439
1028
1354, 2183, 2252, 2264
V. New York
V. State,
78 Ark.
93 Ark.
129 Ga.
V. Utley
V. Way
Adamson v. Harper
Addington v. State
Addis V. Rushmore
Addison v. People
Adkinson v. State
Aeolian Co. v. Standard M. R. Co.
Aetna Indemnity Co. v. Waters
Aetna Ins. Co. v. Bank
V. Brannon
iEtna L. Ins. Co. v. Milward
Ah Hoy V. Raymond
Ahmi V. Waller
Alabama C. C. & I. Co. v. Turner
Alabama Const. Co. v. Meador
Alabama C. G. & A. R. Co. v. Heald
1750, 1951
398
133, 166, 987, 1007
852
1067
2164
1163
1450
1010
290
949
1890
2556
1205
2418
1671
2437
1890
1943
1195
SECTION
Alabama G. I. School v. Reynolds 1858
Alabama G. S. R. Co. v. Clarke 754
V. Hardy 17
V. Norris 2432
Alabama & V. R. Co. v. Thornhill 923, 2509
Albany Phosphate Co. v. Hugger 655
Albrecht v. Hittle 1873
Alcorn V. R. Qo. 283
Alcott V. Public Service Co. 458
Alden v. Grande R. L. Co. 1078
V. Supreme Tent 20
Aldersey, re 2531
Aldrich v. Aldrich 112, 233, 1081, 1737
V. Island E. T. & T. Co. 1967
Aledo V. Honeyman 682
Aledo Terminal R. Co. v. Butler 463
Alexander v. Blackburn 795
V. Blackman 285, 2034
V. Mud Lake L. Co. 1984
V. U. S.
V. Wade
Alexis V. U. S.
Alford V. State
2270
21
968
18,.655, 660, 928, 953,
1615, 1977
Alkon V. U. S. 2276, 2282
Allams V. State 2501
Allen, ex parte 1354, 1671
!). Boston Elev. R. Co. 19, 1700
V. Com., 134 Ky. 1618
Ky. 82 S. W. 19, 177
V. Kidd 1639
V. Northern P. R. Co. 2509
V. St. Louis T. Co. 2509
V. The King 21, 105
V. State, 146 Ala. 276, 293
162 Ala. 2062
14 Ariz. 1350
Okl. Cr., 134 Pac. 398, 2061
V. Travelers' Protective Ass'n 2510
V. U. S. 2042
Alliance Ass. Co. v. Pearce 2463
709
TABLE OF CASES CITED
SECTION
Ailing V. Weissman 1877
AUison V. Wall 1960
AUison's Ex'r v. Wood 1623, 2517
AUman v. M'Cabe 2531
Allred v. Kirkman 1131
■ V. State 987
Allwright V. Skillings 747
Alsterberg v. Bennett 2442
Alton Mfg. Co. V. Garrett B. Inst. 2451
Alward v. Oakes 958
Amazon, The 1352
America, The 2533
American Benevolent Ass'n i>. Stough 1073
American Bonding Co. v. Ensey 2153
American Car & F. Co. v. Alexandria
W. Co. 2200
American Graphophone Co. v. Leeds
& C. Co. 1657
American Ice Co. v. Pennsylvania R.
Co. 455
American Lithographic Co. v. Werck-
meister 2219, 2259
American Mfg. Co. v. Bigelow 1750, 1755
American S. F. Co. v. Gerrer's
Bakery • 2465
American States S. Co. v. Milwaukee
N. R. Co. 463, 1168
American Straw B. Co. v. Smith 65
American Woolen Co. v. Boston &
M. R. Co. 1021
Ames' Will 1081
Amos-Richia v. Northwestern M. L.
Ins. Co. 2184, 2520
Amys V. Barton 1722
Anadarko v. Argo 1062
Ancient Order of United Workmen,
re 2531
Anderson v. Anderson, 140 Ga. 617, 2239
37 N. Br. ' 1519
V. Arpin H. L. Co. 392
V. Aupperle 166
V. Chicago Brass Co. 1416, 1951, 2498
V. Chicago Burl. & Q. R. Co. 716
V. Cole 1573
V. Ferguson B. S. Co. 2201
«. Fielding 461
v. Goodwin 2408
V. Grand V. I. D. 2592
V. Great N. R. Co. 1750
V. Hilker 1639
V. Horlick M. M. Co. 664
V. Metropolitan Stock Exchange 1967
V. Middlebrook 908, 916
SECTION
Anderson v. Oregon R. Co.
456, 2509
V. Pitt I. M. Co.
461
V. Seropian
1158
V. State
122 Ga.
1442
Tex. Cr., 95 S. W.
1128
133 Wis.
8521
V. Terr.
2512
Andrews, ex p. 2271,
2281, 2281a
V. Andrews
2046
V. People
855, 1350
V. State _ 988
Andricus' Adm'r v. Pineville Coal Co.
1354, 1388, 1672
Angell V. Reynolds 211
Angle V. Musgrave 1681
Anglea v. Com. 523, 987
Anin's Petition 2210
Apkins X. Com. 1644
App V. App 2471, 2573
Appel V. Chicago City R. Co. 1807
Applicants for License, re 1354
Aragon Coffee Co. v. Rogers 289
Arbuckle v. Matthews 2143
Areola v. Wilkinson 18
Ard V. Crittenden 1779
Arizona L. Ins. Co. v. Lindell 2438
Arizona & N. M. R. Co. v. Clark 65,
2382
Ark Foo v. U. S. 2256
Arkansas City v. Payne 1067
Arkansas C. R. Co. v. Craig 784
Arlington Oil & G. Co. v. Swann 1672
Armour v. Skene 283
Armour Packing Co. v. V. Y. Produce
Co. 1884
Armstrong v. Portland R. Co. 1856
V. Ross 2465
V. Yakima H. Co. 252, 282, 458
Arnd v. Ayleswprth 2034, 2537
Arnold v. Hussey 1523
D. Maryville 2382, 2386
Arnold's Estate, 147 Cal. 396, 1081, 1738,
2098
240 Pa. 2467
Arnwine v. State 246, 1033
Arrowsmith's Estate 1382, 1417
Arthur v. Arthur 2475
Asbury v. Hicklin 19
Ashley v. State 1442
Atchison T. & S. F. R. Co. v. Baker 561
1404
V. Baumgartner 2510
710
TABLE OF CASES CITED
SECTION
Atchison v. Coltrane 2416
V. Geiser 2509
■c. HoUoway 571
V. Johns 1719
V. Melson 2220
V. Palmore 2200
V. Watson 1978
Atherton v. Atlantic C. L. R. Co. 2201
V. Emerson 754, 1640
V. Tacoma R. & P. Co. 199
Atkins V. Best 87
V. State 689, 1938
Atkinson v. Kirkpatrick 2440
Atlanta & W. P. R. Co. v. Atlanta B.
& A. R. Co. 2572
Atlantic C. L. R. Co. v. Crosby 1755
V. Dexter 2415, 2432
V. Partridge 1871
Atlantic & B. R. Co. v. Johnson 1841
Atlas Shoe Co. v. Bloom 1077, 1555
Attorney-General v. Nottingham 451
V. Toronto J. R. Club 6, 2256, 2281
Atwell, re 2360
Atwell V. U. S. 2363
Atwood V. Atwood 1387, 1408
1919, 1958, 1974
Augusta U. S. Co. v. Forlaw
Auld V. Cathro
Aultman T. & E. Co. v. Knoll
Ausmus V. People
Austin V. Bartlett
V. Com.
V. Forbis
V. Terry
2102
2391
1078
693, 2072
273, 1750
1330, 1398, 1669
1078
1672
Austin & N. W. R. Co. «. Cluck
Avery v. Avery
V. State
X. Stewart
Axel V. Kraemer
Ayers v. Ratshesky
V. Wabash R. Co,
Ayres v. Ayres i
2200
2046
359, 987
1194, 1195
1890
2529
1890, 1895, 2495,
* 2505
2517
B
Babb V. Oxford P. Co.
Bachant v. Boston & M. R. Co.
Bachinski .«. Bachinski
Bacon v. Conroy
Baier v. Selke
Bailey v. Bailey
V. Beall
792
1078
389
738
1078
2069
1911, 1958
W.
SECTION
2421
1466, 2134
283
1691, 1693
1672
2511
293
18, 457
2536
2439
1978
1779
460
199
1738
1447
987, 1850
1079
1956, 2575
321, 2235, 2497
-1078
2450, 2472
2498, 2502
987
406
2143
2462, 2463
15, 987, 1850, 1854
2498, 2502
6, 341, 1850, 1854, 1890,
2273, 2276, 2762
Ballmann v. Fagiri 2268, 2264
Ballow V. Collins 693, 1290, 1299
Baltimore B. R. Co. v. Sattler 451, 1943
Baltimore C. & A. R. Co. v. Moon 1867
Baltimore Refrigerating & H. Co. v.
Kreiner 2508
Baltimore & O. R. Co. v. Fonts 1154
V. Morgan 2390, 2415
V. State 18, 65, 770, 913
V. Wilson 2509
Baltimore & O. S. W. R. Co. v. Bru-
baker 1225
V. HoUenbeck 2536
Banco de Sonora v. Bankers' M. C.
Co. 1697, 2536
Bancroft v. Bancroft 2063, 2069
Banigan v. Banigan 2380
Bank v. Johnson 2195
V. Leland 2124
Bank of Irwin v. American Exp. Co. 347
Banks v. Braman 1698
Com. 233, 1938, 1958
Bailey v. Bee
V. Danforth
V. Kansas City
V. Kreutzmann
V. Robinson
V. State, 168 Ala.
94 Miss.
Bair v. Struck
Baird v. Vines
Baker v. Berry Hill M. S. Co,
V. Cotney
V. Drake
V. Harrington
V. Irish
V. Jones
V. State, 85 Ark.
Fla., 40 So.
174 Ind.
Tex. Cr., 83 S,
120 Wis.
V. Washington I. Co.
Baker Co. v. Huntington
Ball V. Boston
V. Com.
V. Evening Amer. Pub. Co,
V. Loughridge
V. Phelan
V. U, S.
Ball's Estate
Balliet v. U. S,
711
TABLE OF CASES CITED
SECTION
Banks v. Connecticut R. & L. Co. 2219
Baibe v. Terr. 580, 2059
Barber v. State 1012
BarddeU v. State 2582
Barden v. Hornthal 2520
Bardin v. State 1405
Barg V. Bousefield 282
Barham v. Bank of Delight 2153
Barker v. Citizens' M. F. Ins. Co. 2463
Barker v. Massachusetts M. L. Ins.
Co. 1726
V. Rhode Island Co. 905
V. State 20
V. Western U. T. Co. 104
Barnard v. Schuler 1635
V. U. S. 1784
Barnes v. Danville St. R. & L. Co. 2509
V. Rumford 1784
V. Squier 783
V. U. S. 2016
Barnett v. State 2100
Barney v. Quaker Oats Co. 664
Barnewell v. Stephens 1966
Barnowski v. Helson 2509
Barrett v. Magner 2155
V. State 398
Barrie v. Quinby 2440
Barrington v. Missouri 1850
Barron v. Anniston 2498
Barry v. McCoIlom 1729
t. Mutual Life Ins. Co. 2416
V. Smith 2535
Barry's Will 1303
Barson v. Mulligan 2531
Bartleman v. Moretti 2281
Bartlett v. Nova Scotia S. Co. 1564, 1587,
1651
V. O'Donoghue 2132
Barton v. ShuU 1029
V. Terr. 2512
Barton P. M. Co. v. Taylor 2410
Bashinski v. State ' 254
V. Swint 2433
Bass V. State 2513
Batchelder v. Manchester R. Co. 1808
Bates V. State 969, 1042
Battis, in re 2475
Battis V. Chicago R. I. & P. R. Co. 1719,
2382, 2383, 2384, 2389
Battle Creek v. Haak 2354
Battles V. State 398
Bauer v. State 2131
Baugher V. Gesell 1958
SECTION
Baum V. Palmer 2596
Baumgartner v. Eigenbrot 19
Baxter v. Gormley 1141, 1976
Bayeux v. Beryhale 1347
Baysinger v. Terr. 1755
Beal-Doyle D. G. Co. v. Cart 1750, 1751
Beamish ■!). Beamish 2421
Beard v. Com. 2354
V. Guild 283
V. Royal Neighbors 1669
Bearden v. State 2349
Bearse v. Mabie 2034
Beattie ». Boston Elev. R. Co. 2509
Beaty v. Com. 1448
Beauvoir Club v. State 2270
Beavers v. Bowen ' 1669
Beck .!!. Staats 1164
Becker v. Philadelphia 1075
Beckman v. Lincoln & N. W. R. Co. 2486
Bedenbaugh v. Southern R. Co. 65
Beebe v. Redward 1456, 2596
Beeler's-Ex'x v. Cumberland T. & T.
Co. 2596
Beeman v. Supreme Lodge 95, 2152
Beer, in re 2282
Beggans' Will 1417, 1511
Beier 1>. St. Louis T. Co. 905
Beld V. Darst 24.55
Belford v. State 133, 987, 2061
Belknap Hardware Co. v. Sleeth 289
Bell V. Bell 2046, 2067
V. Staacke 2465
V. State
140 Ala. 1966
Miss., 38 So. 1021, 1038, 1349
Belleville v. Wells 1350
Belskis v. Dering Coal Co. 18, 1261, 1263,
1750
Bennett v. Com. 218, 1873
V. Lumber Co. 916
D. State, 160 Ala. 1124
66 Fla. 1329, 1442
Tex. Cr. 81 S. W. 276
V. Susser 15, 278
Benner v. Bailey 2408
Benson ». Raymond 1081, 1160
Bensberg v. Washington University 2500
Benson v. Superior Mfg. Co. 1951
Bentler v. Com. 2252, 2281
Bentley v. Bentley's Estate 1893
V. Jim 608
V. McCall 1651, 2143, 2146
Benton v. State 18, 987
712
TABLE OF CASES CITED
SECTION
Bercher v. Gunter 1969
Berenson v. Conant 2445
Berg V. Spink 717
Bergan v. Central Vermont R. Co. 2491
Bergen «. People 2071
Bergheimer «. Bergheimer 2245
Bernard ». Pittsburg Coal Co. 1067, 1133
Bernards Tp. v. Bedminster Tp. 1490
Berry v. Berry 2067
e. Doolittle 770
V. State, 9 Ga. App. 1821
4 Okl. Cr. 861
Bess 11. Com.
116 Ky. 390
118 Ky. 852
Bessierre v. Alabama C. G. & A. R.
Co. 1750
Best v. Berry 2471
Betts V. Betts 2498
Beuchert v. State ' 326
Bevelot V. Lestrade 1738
Beville, ex parte 2245
Beyerline v. State 2338
Bianchi v. Del Valle 613
Biddeford Nat'l Bank v. Hill 2416
Biddle v. Superior Court l074
Bieber v. Gans 2408
Biggers v. Catawba P. Co. 1976
Biggs V. Com. 1440
Bigliben v. State 1481
Biggs V. Langhammer 2053
Billing V. Semmens 2510
Billingsley v. State 2043
Bilton V. Terr. 1442
Binewicz v. Haglin 282, 1053, 1055
Bioren v. Nesler 1511
Birch V. Somerville 1819
Bircher v. Modern Brotherhood 2510
Birdseye, re 2603
Birdwell v. U. S. 620
Birely v. Dodson 2463
Birkenfeld v. State 851
Birmingham R. & E. Co. v. Mason 944
2354
Birmingham R. L. & P. Co. v. Barrett 17,20
V. Bush 1263, 2124
V. Bynum 451
V. Martin 455, 1951
V. Moore 1693, 2354
V. Morris 461
V. Rutledge 789, 1719
V. Seaborn 754
V. Wise 507
SECTION
Birmingham So. R. Co. v. Fox 252
Birmingham & M. M. O. Co. v. Lon-
don & N. W. R. Co. 2319
Bu-ney v. Haim 2132
Bise V. U. S. 1270
Bishop V. American Preservers' Co. 1213
V. Bishop 488, 2239, 2245
V. Brittain Inv. Co. 2505
V. HiUiard, 227 111. 1911, 2505
V. State, 194 111. 347
Tex. Cr. 160 S. W. 69
Bivings v. Gosnell 1778
Bjork V. Glos 18
Black V. Chicago B. & Q. R. Co. 1239
V. State 200, 987
Black Diamond C. & M. Co. v. Price 451
Blacker i). State 2071
Blackett v. Ziegler 1782, 2475
Blackford Case, The 18
Blackmore v. Ellis 2498
Blackstad M. Co. v. Parker 2410
Blackwell v. Blackwell 2408
Blacquierre ». Carr 2065
Blair v. State, 72 Nebr. 278, 398, 1878
4 Okl. Cr. 1447
Blais V. Clare 2465
Blake v. Ogden 2408
Blalock V. Clark 2440, 2496
Blanchard v. Holyoke St. R. Co. 789, 1164
Bland v. Beasley 1582, 1684, 1587
Blank Estate 2065
Blankenship ii. Com. 2496
V. Hall 2520
Blease v. Garlington 2195
Bledsoe v. Jones 803
Bleistine v. Chelsea 262
Blickley v. Luce 1040
Blincoe v. Choctaw O. &. W. R. Co. 1168
Bliss V. Beck 1039
V. Harris 2169
Block's Succession 1352
Blood V. Morrin 1856
Bloedel «. Cromwell 2421
Bloom V. Wanner 95
Bloomer v. State , 63, 1072
Bloomfield v. Board 1350
Blossi V. Chicago & N. W. R. Co. 1969, 2415
Blue V. State 2497
Blue Ridge L. & P. Co. v. Price 1750
Board v. Provident H. & T. S. Ass'n 1442
V. Tollman 1350
V. Travelers' Ins. Co. 1350
Bobbink v. Erie R. Co. 468
713
TABLE OF CASES CITED
SECTION
Boche V. State 1022
Bock D. Wall 393
Bodcaw L. Co. v. Ford 283
Bodenheimer v. Bodenheimer's Ex'r 2054
BoelSne v. Sovereign Camp 1671
Boehner ». Hirtle 1573
Boermer Fry Co. v. Mucci 457
Bogart V. New York 1963
V. PitcWess L. Co. 561
Bogert V. Bateman 1511, 2411
Boles V. People 795
Bollinger v. Bollinger 1043, 1378
Bolton ». State 2016
Bond V. Hurd 2036
V. State 1671
Bone V. Hayes 289
Bonelli v. Burton 289
Bonestel v. Gardiner 2432
Boney «. Boney 1072, 2103
Booker v. Booker 614
Boonville Nat'l Bank v. Blakey 2450
Boop !). Laurelton L. Co. 459
Booren v. McWilliams 2181, 2383
Borck J). State 959
Borden v. Lynch 1086, 1890
Boren o. U. S. 2042
Boring v. Ott 2498
Borneman v. Chicago, St. P. & M. R.
Co. 561, 571
Borstelman v. Brohan 2105
Bosnight v. Southern J. Co. 2435
Boston Elevated R. Co., in re 1117, 1807
Boston Safe D. & T. Co. v. Buffum 2421
Boston & M. C. C. & S. M. Co. (State
ex rel.) v. District Court 1862
Boston & Maine R. Co. v. Franklin 2349 2354
V. State 1856, 2195, 2210, 2212, 2223
Boswell V. First National Bank 1290, 1312,
1320
Bosworth V. Union R. Co. 1662
Bothwell V. Boston El. R. Co. 2495
V. State 1938
Bottomley v. Hall 2169, 2184
Boucher v. Boston & M. R. Co. 2509
Boulder & W. R. D. Co. v. Leggett
D. &. R. Co. 581
Boulton V. Houlder 1858
Bourassa v. Grand T. R. Co. 93, 97
Bouvier-Jaeger Coal Land Co. v.
Sypher 1352
Bowe V. Gage 2498
Bowen v. Mutual Life Ins. Co. 2442
V. State 141
SECTION
Bower v. Cohen 1225, 1564, 1651, 1665,
2138
Bowers v. Cottrell 2408
Bowles V. Com. 1750
Bowling Green G. Co. v. Dean's Ex'x 792
Bowman v. Little 29, 1602, 2086, 2506,
2529
51. Owens 1778
Boxendone v. Haliburne 2426
Boyce v. Bolster 616
Boyd V. McConnell 1510
V. State, 84 Miss. 1124, 1448, 1722,
2264, 2272
81 Ohio 398
Boyer v. Chicago R. I. & P. R. Co. 1975
Boykin v. State
86 Miss. 1014
Miss., 42 So. 276
Boyle V. Boston Elev. R. Co. 2125
V. Smithman 2257
Boyne C. G. & A. R. Co. v. Anderson 795
Boynton v. Ashabranner 1239
Boys V. Charles 2426
Brackney v. Fogle 2391
Bradford v. Blossom 2421
Bradley v. Basta 2415
V. Gorham 1029, 2034
Bradley Gin Co. v. Means Co. 2442
Bradshaw v. Butler 2106
Brady v. Shirley 167, 1978
Bragg V. Metropolitan St. R. Co. 18
Braham v. State 18, 561, 656, 689, 782,
851, 1842, 1938, 2115
Brailey v. Rhodesia Consolidated 690
Brainard v. Brainard 1938
Branan v. Nashville C. & St. L. R. Co. 1859
Brannan v. Henry 2132
Branson v. Wirth 1662
Branstrator v. Crow 2500, 2530
Bray J). U.S. 205,282,2061
V. Williams 1350
Brazier's Case 1761
Breeden v. Com. 2595
Breidenstein v. Bertram 269, 2527
Brennan v. People 1450
vs. St. Louis 283
Brenton tt.Terr. 2061
Bresler's Estate 1552, 2452
Brett V. State 792
Brewer v. State 832
Bridger v. Exchange Bank 1877
Briggs, re 2261, 2281, 2282
V. People 780, 1329, 2512
714
TABLE OF CASES CITED
SECTION
Bright V. Com. 506, 1828, 2336
Brinsfield v. Howeth 1614, 1971, 2354
Brison v. McKellop 1730
Brister v. State 2354
British Amer. Ins. Co. v. Wilson 1456
British Ass'n of Glass Bottle Mfrs. v.
Nettlefold 1859
Britton v. Chamberlain 1681
V. Com. 987
Bradshaw v. Butler 2106
Broadwell v. Morgan 1564
Brock V. Brock 1302
». MetropoUtan L. Ins. Co. 2494
V. State 1003
Brom I!. People 363, 1441
Bromberger v. U. S. 1839
Bromley v. Atwood 2475
Brooddus v. Monroe 2503
Brooke v. Lowe 1876
Brooks V. Garner 289
B. State 1966
Brooks Co. v. Wilson 2438
Brosseau v. Lowy 2433
Brosty V. Thompson 2442
Brotherhood of Painters v. Barton 1646, 2390
Brott V. State 177
BrowneU v. Brownell 987
Brown v. Arnold 2593
V. Brown 2315, 2329, 2475
V. Chicago B. & Q. R. Co. 655
V. Com. 1440
V. Crown G. M. Co. 2433
V. Equitable L. Ins. Co. 1242
V. Evans 2016
V. Feldwert 2410
V. First Nat'l Bank 1074, 1236
V. Gillett 1028, 1031
V. Harkins 1195, 1240
V. Harriot 1896
V. Huey 1856
V. Kimball 2024
V. Milwaukee E. L. & R. Co. 664
V. Moosic M. C. Co. 2312
V. New Jersey S. L. R. Co. 463
V. Orde 1856
V. Patterson 610, 2336
V. Quinby Co. 2410
V. Quintard 2471
V. State
142 Ala. 278, 600, 1007, 1013,
1108
119 Ga. 2115
(Tom) 85 Miss. 396, 2072
SECTION
Brown v. State — Continued ■
(Tom) 88 Miss. Ill, 396, 1871
■ (Leora) Miss., 40 So. 1008 396
127 Wis. 581, 1076
V. U. S. 1079
V. Wisner 2446
Brown's Will 928
Brown Land Co. v. Lehman 19, 2349
Bruce v. Crews 702
1). Wanzer 1651
Bruder v. State 763
Bruger v. Princeton & S. M. M. F. Ins.
Co. 1213
Bruggeman v. Illinois C. R. Co. 1693, 1951
Brundred v. McLaughlin 1956
Brunet v. State 248
Brunger v. Pioneer R. P. Co. 284
Bryan v. U. S. 318
Bryan's Appeal 2452
Bryant v. McKinney 1496
Bryce v. Canadian Pac. R. Co. 562
B. Chicago M. & St. P. R. Co. 660
Buce V. Eldon 1719
Buchanan v. Clark 2408
V. MinneapoUs T. M. Co. 18
Bucher v. Wisconsin C. R. Co. 663
Buck s. Brady 751
V. McKeesport 792
Buckingham v. Angell 2215
Buckley ii. U. S. 1641, 1672
Buckner v. State 247
Budro V. Burgess 2432
Buehner Chair Co. v. Feulner 2552
BufHngton v. McNally 2438, 2465
BuUard v. HoUings worth 791
V. Leach 2474
Bullard's Estate 233, 1671
Bundrick v. State 1878
Bundy v. Sierra L. Co. 1951
Burch V. Americus G. Co. 95
Burdett v. State 580
Burdette v. Burdette 2245
Burnaman v. State 280, 960
Burk V. Reese 680, 682
». State 968
Burke v. Burke 2450, 2498
V. Glos 1225
». Louisville & N. R. Co. 455
Burkhardt v. Loughridge 1869
Burkhart v. North American Co. 76
Burks V. State
72 Ark. 1808
78 Ark. 1126
715
TABLE OF CASES CITED
SECTION
Burnaby v. Baillie
2063
Burnett v. State, 76 Ark.
2062
8 Okl. Cr.
2259
Burnette, re
2327
Burnette v. Young
2456
Burns v. Del. & A. T. & T
.Co.
561
V. Donoghue
1141
V. State
1807
Burnside v. Everett
451
,681
,1873
Burr's Trial
2200
Burrell v. Montana
852,
2281a
Burris v. State
278
Burroughs v. U. S.
111
Burrow V. Idaho & W. N.
R. Co.
916
Burton 11. Dangerfield
1680
V. Driggs
1404
V. State
141 Ala. 2153
Tex. Cr., 101 S. W. 1644, 1651
V. U. S. 2346
V. Wylde 1736
Burwell v. Brodie 2580
Busby V. State 987
Busch 1). Robinson 2097
Bush V. Com. 935
V. State 2595
Bush & H. Co. V. McCarty Co. 245
Busse V. State 133
Butcher v. Butcher 1511
Butchers' S. & M. Ass'n v. Boston 1530,
1633, 1635
Butler, re 2195
Butler V. nines 1778
V. State 406
V. Toronto Mutoscope Co. 2203
Butrick, re 2139
Butschkowski v. Bracks 2573
Butt V. Mastin 1239
V. Smith 2433
V. State 1079
Butterfield v. Beaver City 17
V. Miller 2144
Butteris v. Mifflin & L. M. Co. 2355
Button, ex paHe 1856, 2195, 2210
Butts V. Richards 2520
Buzzell V. Tobin 2420
Byers v. Baltimore k O. R. Co. 456
Byram v. People 851
Byrd v. State 1938
Byrne v. Boston W. H. & R. Co. 2509
V. Cambria & C. R. Co. 1943
Bynes «. Butte Brewing Co. 1063
2594
SECTION
c
C. V. C. 2220
Cabaniss v. State 1230, 1244, 1959, 1960
Cadigan v. Crabtree 1063
Cadwalader v. Price 1564
Cady V. Cady 20
V. Norton 18, 1819
Cairnes v. Pelton 1854, 1856
Cairns v. Murray 1557
Caldwell e. Modern Woodmen 2531
V. State 20, 2056, 2336, 2528
Caldwell L. & L. Co. v. Triplett 1567
Calkins v. Calkins 2520!:
V. Howard 1354
Calkins' Estate 1738
Callender, M. & T. Co. 11. Flint 2536
Callerand v. Piot 2408
Calligan v. Calligan 2520
Calvert v. Carter 1907
V. Springfield Elec. L. & P. Co. 1698
Cameron v. U. S. 7, 2280
Campbell v. Bates 2008, 2139, 2142
Campbell v: Brown , 1750
V. Campbell, 138 111. 1081
30 R. I. 1908
V. Everhart 1671, 2494
V. Hackfeld 2220
V. New Haven 1951
V. Perth Amboy S. & E. Co. 2433
II. Railway Transfer Co. 1871
V. Skinner 7, 2143
V. State, 123 Ga. 397
62 Tex. Cr. 987
Campion v. Lattimer 778
Camsusa v. Coigdarripe 282
Canaan v. Avery • 2527
Canadian Pacific R. Co. v. Quinn 1530
Canatsey v. Canatsey 1511
Canham v. Rhode Island Co. 282
Cannon v. Terr. 934, 987
Canole !). Allen 2236
Can Pon, in re 1354
Cantey v. Piatt 2017
Cantin v. News Pub. Co. 1856
Capell V. Fagan 2105, 2448
Capital C. Co. v. Holtzman 282, 969
Capital Traction Co. v. Contner 1021, 1951
Caples V. State, 987
Carbould-EUis v. Dales 2475
Cardiff, The 917
Cardwell v. Breckenridge 570
Carey v. Hawaiian Lumber Mills 382
V. Nissle 1051
716
TABLE OF CASES CITED
SECTION
Carle v. People
2484
Carlin v. Kennedy
1951
Carlisle v. Grand Trunk R
.Co.
2509
Carman v. Montana C.
R.
Co.
791
Carmical v. Carmical
1302
Carney ti. Boston Elev.
R.
Co.
2509
V. Hennessey
916
Carothers v. State
2277
Carp V. Queen Ins. Co.
1186
Carpenter v. Ashley
1416
V. Dressier
1239
V. Jones
2105
V. Hatch
1081
V. Smith
1239
V. Winn
1859
Carr v. American Locomotive Co. 252, 1403
V. First National Bank 2572
V. McColgan 2410
V. Stern 65
Carrara P. A. Co. ■». ^Carrara P. Co.
1381, 1907
Carrens v. State 2062
Carrington v. Brooks 2219
Carroll v. Boston Elev. R. Co. 561, 682,
1856, 2509
V. East Tenn. V. & Ga. R. Co. 2319
Carson v. National Life Ins. Co. 2437
Carstens «. Muggat 1519
Carter v. Carter 2113
Carter v. State, 172 Ind. 143, 238
6 Okl. Cr. 331
V. Wakeman 21, 1414
V. Wood 2143
Cartwright v. Toronto 1389
Carwile v. State 93, 821, 1966
Carwille v. Franklin 785
Case Threshing M. Co. v. Mattingly 2415
Casey v. Chicago City R. Co. 1721
Cashin v. N. Y. N. H. & H. R. Co. 228,
1639, 1722
Casparis Stone Co. v. Boncore 2509
Cassatt V. Mitchell C. & C. Co. 1859, 2200,
2219, 2257, 2259
Cassem v. Prindle 2106
Cassidy v. Holland 2520
Castleberry v. State 987
Castner v. Chicago B. & O. R. Co. 451,
1048, 1062, 2094
Castor V. Bernstein 1290, 2016
Caswell V. Glos 1705
Catchings v. State 2034
Cather v. Damerell 1554, 1556
Catron v. Com. 1157
SfeCTION
Cavanagh v. Iowa Beer Co. 2410
V. Riverside 287
Caven v. Bodwell G. Co. 782, 1896
Cawthon v. State 363
Cecil «. State 987
V. Terr. 398, 1061
Cecil Paper Co. v. Nesbitt 1978
Cedar Rapids Nat'l Bank v. Carlson 2410
Cedartown v. Brooks 2220
Central Branch U. P. R. Co. v. Shoup 2593
Central of Ga. R. Co. v. Bagley 2609
V. Goodwin 1976, 2416
V. Keyton 451, 1943
Central National Bank v. National
Met. Bank 1876
Central Pac. R. Co. v. Feldman 1640
Central Trust Co. v. Culver 1058
Chadister v. Baltimore & 0. R. Co. 1168
Chadwick v. U. S. 1060, 2364
Chaffin V. Fries M. & P. Co. 461, 2498
Chahoon's Case 392
Chamberlain v. Chamberlain 2134
V. Iba 1058
Chambers v. Chambers 2520
V. Jaffray 6, 2281
V. Modern Woodmen 1671
V. Morris 667
Champion v. McCarthy 1492, 2314
Champlin v. Pawcatuck V. St. R. Co. 1750
Chan V. Slater 1779
Chancellor v. State 2059
Chancey v. State 21
Chandler v. Mutual L. & I. Ass'n 1461
V. State 527, 1012
Chantangco v. Abaroa 1347
Chandler v. State 627, 1012
Chany v. Hotchkiss 1031
Chapline v. State 1079
Chapman v. Chapman 1681
V. KuUman 2531
V. Pendleton 1777
Chaput V. Haverhill G. & D. St. R. Co. 1576
Charles v. State 1878
Charlton v. St. Louis & S. F. R. Co. 458
Chase v. Hoosac T. & W. R. Co. 1023
Chaslavka v. Mechalek 2245
Chastang v. Chastang 157, 2166
Chastek v. Souba 2408
Cha;teaugay O. & I. Co. v. Blake 661
Chatman v. Hodnett 2146
Chattanooga N. B. & L. Ass'n v.
Vaught • 1347
Chavigny v. Hava 505
717
TABLE OF CASES CITED
SECTION
Cheek v. Oak G. L. Co. 18, 454
Cheetham v. Union R. Co. 451
Cheney v. Goldy 1738
Cheney's Estate 18, 1958
Chenoweth v. Burr 2498
V. Southern Pacific Co. 2509
Cherry v. Slade 2477
V. Sprague 2536
Chesapeake Stone Co. v. Fossett 1389
■ Chesapeake & 0. C. Co. v. Western
Md. R. Co. 2572
Chesapeake & O. R. Co. v. Deepwater
R. Co. 1074, 2466, 2478
V. Howard 2415
V. Richardson 456
V. Stock 1062, 1234
V. Wiley 688
Cheshire, in re 1681
Chesney ». Newsholme 1760
Chester v. Murtfeldt Co. 2510
Chesterfield Mfg. Co. ■». Leota Cotton
Mills ' 377
Chiara v. Stewart Mining Co. 2510
Chicago V. Didier 1976
■e. Gilsdorff 18
V. Jarvis 252, 458
!). McNally 688, 2220
V. Mandel 1219
V. Mines 463, 1808
Chicago B. & Q. R. Co. v. Babcock 2358
V. Krayenbuhl 285, 1158, 1414
V. Todd 1704
V. Weber 1223
Chicago City R. Co. «. Bundy 15, 568, 682,
1013, 1719, 1721, 1977, 2115
V. Creech 1890
V. Gregory 905, 1808
V. Handy 961
V. McCaughna 688
V. McDonoUgh 1977
J). Matthieson 1037, 1126, 1977
V. Nelson 2552
V. Ryan 1013
V. Shaw 1014
V. Smith 795
V. Uhter 18, 987, 1626, 1750
Chicago Gt. Western R. Co. v.
McDonough 18, 451, 461
Chicago M. & St. P. R. Co. «. New-
some 19
Chicago R. I. & P. R. Co. v. Brandon 2509
V. Hill 2220
13. Rathneau 18, 458
SECTION
Chicago St. L. & N. O. R. Co. v. Rott-
gering 463
Chicago Telephone S. Co. v. Marne
& E. T. Co. 1160
Chicago Title & T. Co. v. Sagola L.
Co. 586
Chicago Union T. Co. v. Ertrachter
170.0, 1976
V. Giese 688, 2509
V. Lawrence 233, 689, 1938
11. O'Brien 1807, 2034
V. Roberts 681, 1920, 1976
Chicago W. & V. C. Co. v. Moran 1223
Chicago & Alton R. Co. v. Eaton 282
s. Howell 438
V. Kelly 1012
V. Scott 463
V. Walker 791, 1158
v. Wilson 65, 1684, 2510
Chicago & E. R. Co. v. Lawrence 1960
Chicago & E. I. R. Co. v. Grose 460, 792
1037, 2551
V. Schmitz 20, 969, 1587, 1626, 2515
v. Zepp 749
Chicago & J. El. R. Co. d. Spence 795
Chicago & N. W. R. Co. v. Andrews 664
s. Kendall 6, 2221
Chicago & S. E. R. Co. s. Grantham 2110
Chicago & S. L. R. Co. v. Kline 463, 792,
1013
Chicago & W. L R. Co. v. Heiden-
reich 679
Childers v. Pickenpaugh 2477
Chin Yow v. U. S. 1354
Ching Lum v. Lam Man Ben 1810
Chippewa Bridge Co. ■». Durand 2451
Chitwood J). U. S. 93, 346
Chiuccariello v. Campbell 2509
Choctaw, O. & G. R. Co. ». McDade 18,
283
Chrast v. O'Connor 1651
Christiansen v. Graver T. Works 2558
Christopherson v. Chicago M. & St.
P. R. Co. 1750, 2510
Chybowski v. Bucyrus Co. 282, 2494
Cincinnati H. & D. R. Co. ®. De Onzo 792
V. Frye 2507
Cincinnati N. O. & T. R. Co. «. Cox 1878
V. Martin 1750
V. Sadieville M. Co. 455
«. South F. C. Co. 2509
Cincinnati Traction Co. ■». Stevens 1126,
1944
718
TABLE OF CASES CITED
SECTION
Citizens' Sav. Bank v. Globe B . Works 2596
Citizens' State Bank v. Chambers 2464
City Bank v. Thorp 1201
City Deposit Bank v. Green 2444
City Electric R. Co. v. Smith 1841
City of St. Joseph, The 751
Clagett V. Duluth 1350, 1684
Clampitt V. U. S. 347
Clancy v. Barker 1078
V. Clancy 2477
V. St. Louis T. Co. 905
Clark II. Brooklyn H. R. Co. 789
V. Clark 1639
V. Eltinge 1953, 2555
V. Finnegan 508, 1828
V. Grand Trunk W. R. Co. 2509
V. People 95, 359, 1726
V. State, 79 Nebr. 363
56 Tex. Cr. 1726
V. Union Traction Co. 736
V. U. S. 2119
V. Van Vleck 1698, 1750, 2354
Clark Co. v. Rice 1416
Clarke v. N. Y. N. H. & H. R. Co. 21, 282
V. PhUa. & R. C. & L Co. 1974
V. Roberts' Estate 2054
Clarkson v. Bank of Hamilton 1856
Claudet v. Golden G. M. 1532
Clay V. State 861, 2056, 2059, 2100
Clayton v. Gilmer Co. Ct. 2477
Clemens v. Conrad 1270
V. Crane 2406
V. Royal Neighbors 1725
Clement v. Graham 1218, 1680, 1858
Clement, re 2477
Clements v. Potomac E. P. Co. 461
Clemmons v. State 363, 568, 2501
Clemons v. State 1976
Clendennin v. Clancy 2550
Cleveland v. Com. 1450
V. Martin 1984
V. State 2042
Cleveland, C. C. & St. L. R. Co. v.
Gossett 2465
V. Hadley 568, 2491
V. Loos 466
V. Smith 463
Cleveland P. & E. R. Co. v. Prits-
chan 781
Clifford V. Denver & R. G. R. Co. 2390
V. Pioneer Fireproofing Co. 987, 1270,
2529
V. Taylor 228,, 2491
SECTION
Clifton V. State
398, 2060
Clinton v. Goodrich
987
V. State
506, 925, 1029, 1828
Close V. Chicago
20
Clow V. Smith
1041
Coats V. Chicago R. L & P. R. Co. 2415
Cobb V. Dunlevie 1651
V. Glenn B. & L. Co. 1236, 2154
V. Oklahoma Pub. Co. 987
V. Simon 2296
V. United E. & C. Co. 678
Cobb, B. & Y. Co. V. Hills 916
Coburn, in re 1968
Cochburn v. Hawkeye C. M. Ass'n
• 907,2311
Cochran v. Cochran 1730
V. Lloyd 2609
V. Stein 697, 2008
V. U. S. 1852, 1873
Cochrane v. National Elev. Co. 2016
Cockerill v. Harrison 6, 2061
Cogswell V. Hall 1576
Cohankus Mfg. Co. v. Rogers' Gdn. 1164
Cohen v. Hamblin & Russell Mfg. Co. 458
Cohn & Goldberg L. Co. v. Robbins 1779
V. State 2183
Coine v. Chicago & N. W. R. Co. 2432
Colbert v. State 2026, 2396, 2629
Colbert's Estate 1736, 2623
Colburn v. McDonald 1350
V. Marble 76, 77, 207, 213
Colby V. Foxworthy 2625
V. Reams 2121
Cole, re 2207
Cole V. District Board 1605, 1974, 2636
V. EUwood Power Co. 1234
V. Lee 2145
V. Manning 2061
V. State 2237, 2336
Coleman v. Coleman 2408, 2620
V. Jones & Pickett 1066
Colesar v. Star Coal Co. 795
Collier v. Alexander 2169
V. State 398
Collins V. Capes 2477,
V. Chicago M. St St. P. R. Co. 1951
V. Clough 1567
V. Dorchester 451
V. German-Amer. M. L. Ass'n 1644
CoUison V. lUinois C. R. Co. 65, 2610
CoUister v. Ritzhaupt 64
Colonial Jewelry Co. v. Brown 2410
Colonial Park Estates v. Massart 2410
719
TABLE OF CASES CITED
SECTION
SECTION
Colorado Midland R. Co. v
. McGary 2582
Commonwealth v. Kelly
660, 1129
Colorado & S. R. Co. v. Lauter 664
J). Loving
263
v. Webb
571
V. McClanahan
833, 851
Colored Knights of Pythias v. Tucker 2506
». McGarvey
326
Colton's Estate
1244, 1272, 1678
V. Mackenzie
852
Columbia N. & L. R. Co. v
Means 2496
V. Maddocks
59
Columbian B. & L. Ass'n v
Rice 2536
V. Merrill
1680
Columbus R. Co. v. Patterson 18
V. Min Sing
280, 960
Coman v. Wunderlich
377
V. Molten
2501
Combs' Appeal
2048
V. Monongahela Bridge Co.
1058, 1066
Commissioners v. State
1951
». O'Bryan, U. & Co.
95, 1678
». Warfield
1350
B. -Palmer
2512
Commonwealth ». Adams
2514
I). People's Ex. Co.
2272, 2273
V. Anselvich
1354
V. Phelps, 192 Mass.
2056, 2059
V. Aston 56, 851, 861, 1072
210 Mass.
1700
21. Barker
2241
V. Phillips
858
V. Barnacle
246
V. Phoenix Hotel Co.
2259, 2276
K. Bavarian B. Co.
20, 905
V. Preece
861
V. Bishop
2056
J). Racco
987
1005, 1270
V. Bolger
2252
V. Richardson
2281a
V. Bond
291, 2581
J). Richmond
154
2272, 2273
V. Borasky
570, 1335, 2100
». Rivet
93
V. Brown
1067
V. Shooshanian
811, 2098
V. Cameron
2252, 2282
D. Sinclair
1722, 2511
». Cate
21,56
». Snell ^
363
V. Clancy
321
V. Snyder
232, 855
V. Colandro
988, 2512
V. Spencer, 212 Mass.
286,
561, 1938,
«. Croni^i
2340
2243, 2501
v. Davies
2042
V. Spohr
1434
n. Deitrick 905, 918,
1018, 2079, 2512
V. Stevens
2536
V. De Masi
2056
1). Stuart
1079, 1576
V. D6rr
770, 1861
V. Thomas
111
V. Dow
329
V. Thompson
1076
V. Edgerton
1351
V. Tircinski
246
n. Elisha
1476
J). Tucker 16, 154, 392, 457, 655, 682,
V. Ensign
2264
792
861,
1126, 1129,
V, Everson
2339
1871,
2020,
2183, 2550
«. Eyler
1974
J). Walsh
1270
V. Fielding
792
V. Webster
416
V. Furman
507, 1821, 1828
V. Williams
923, 987
V. Green
2272
«. Woelfel
617
V. Greene
2511
Commonwealth Trust Co.
1). Coveney 2444
». Hargis
1079, 1442
Compher v. Browning
1063,
1738, 1938,
V. House '
364
2502, 2503
B. Howard 238
, 390, 1725, 1808
Comstock «. Conn. R. & L
Co.
463
». Hudson
832
•e. Georgetown 461,
1062
1721, 1974
V. leradi
. 1010
Comstock's Adm'r v. Jacobs
664, 1003
D, Johnson, 123 Ky.
1635
Conant v. Evans
1058
158 Ky.
1451
V. Jones
1872
188 Mass.
655, 681
Conger u. State
1135
199 Mass.
792, 1871, 2273
Conklin v. Consolidated R.
Co.
75, 1725
213 Pa.
858, 2233
Conkling v. Weatherwax
1083, 1085
V. Jordan
1700, 1858
72
0
2517
TABLE OF CASES CITED
SECTION
Conley v. Portland G. L. Co. 555, 561, 571
». United Drug Co. 2509
Conly J). Nailor 2047
Connecticut Power Co. v. Dickinson 19,
1808
Connella v. Terr. 2339
Connelly ». Brown 256
Conner v. Missouri P. R. Co. 966
Conover v. Neher R. Co. 208, 747, 1556
Conrad v. Clarke 2444
V. Kennedy 1681
Com-ades, ex p. 2260
Conrades v. Heller 1511
Considine v. Dubuque 792
Consolidated G. E. L. & P. Co. v.
State 283, 461, 794, 1976
Consolidated Grocery Co. «. Ham-
mond 2153
Consolidated K. C. S. & R. Co. v.
Gonzales 1521
Consolidated Rendering Co., re 2200, 2201,
2259, 2268, 2271
V. Vermont 2195, 2200, 2203, 2252
Continental Casualty Co. v. Jasper 2433
V. Owen 2452
Continental F. Ins. Co. v. Whitaker 2415
Continental Hose Co. v. Fargo 2446
Continental Ins. Co. v. Chicago k N.
W. R. Co. 2487, 2509
V. Ford 1869
V. Hargrove 95
Conway v. Rock 2520
Cook V. Chicago R. I. & P. R. Co. 1271
V. Doud Sons & Co. 1951
V. Enterprise Transp. Co. 20
V. Manasquan 2451
V. NewhaU 2509
V. Stimson Mill Co. 1078, 1977
V. State 1022, 1079
V. U. S. 2042
Cooke V. Cain 2066
V. People 1530, 1539
V. Wilson 803
Cooley V. Collins 1213, 1256, 2509
Coolidge V. Ayers 1041, 1051
V. Taylor 1530
Coolman «. State 1839, 1841
Coon V. McNelly 2463
Cooper V. Bower 18, 1770
V. Kennedy 2442
V. Payne 2434
V. Seaboard A. L. R. Co. 13, 688
V. Spring V. W. Co.. 2498
SECTION
Cooper V. State, 89 Miss.
852, 1448
94 Miss.
1021
Tenn., 138 S. W.
1755
V. Terr.
2059
V. Upton
287
Copeland v. State
669, 1442
Copley V. Ball
1658
Corbett v. Joannes
2465
Corbin ». Benton
2509
V. Gleason
1738
Corcoran v. Albuquerque T. Co.
437
Cordiner v. Los Angeles Traction Co.
663
Corkran v. Rutter 1555, 1558
5. Taylor 1555, 1558
Corkum v. Corkum 617
Cornell v. Morrison 2594
Cornet v. Cornet 2503
Comog V. Wilson 2525
Corpus V. State 21l'5
Corse & Co. v. Minnesota Grain Co. 561
Corsellis, re 2463
Corser v. Paul 1056
Corsick v. Boston Elev. R. Co. 1043
Coruth V. Jones 64
Cosgrove v. Pitman 250
Cotter V. Cotter 2046
Cotton V. Boston El. R. Co. 1041, 1152
V. Willmar & S. F. R. Co. " 664
Coulter V. State 248
Councill V. Mayhew 1958, 1966
Courtenay v. Hoskins 1391
Couts V. Winston 2498
Covington v. Berry 1239
V. O'Meara 496, 497
Cowan V. State 2277
Cowdery v. McChesney 1558
Cowdry's Will 2502, 2511
Cowles V. Lovin 1584, 1587, 1665
2509
1502
1350
1040
406
2513
988
1451
2408
928
2494
2382
1977
2346
Cox V. Aberdeen & A. R. Co.
V. Brice
V. Mignery
V. State, 124 Ga.
162 Ala.
V. Terr.
Coxe V. Singleton
Coyle V. Com.
Craddock v. Barnes
Craft V. Barron
V. Norfolk & S. R. Co.
Crago V. Cedar Rapids
Craig V. State
Cramer v. Burlington
721
TABLE OF CASES CITED
SECTION
Crane v. Fry
1951
V. Ross
1062, 1960
Craven v. State
1440
Crawford v. U. S.
581, 2120
!). Verner
2473
Crawfordsville Trust Co. v
Ramsey 1890
Credille v. Credille
1738, 2500
Crediton v. Exeter
2325
Creeping Bear v. State
950, 1022
Crenshaw v. State
2059
Cressey v. International
Harvester
Co.
2442
Creveling v. Banta
2410
Cribbs V. Walker
2408, 2520
Crigler v. Ford
252
Crippen, in re
1347
Crippin v. State
1587
Crocker-Wheeler Co. v. Bullock 2193, 2210,
2212
Croft V. Chicago R. I. & P. R. Co. 1944,
2509
Cromeenes v. San Pedro L. A. & S. L.
R. Co. 1755
Cronk v. Wabash R. Co. 283, 571, 1700
Crooker v. Pacific L. & M. Co. 461
Croomes v. State 1761
Crosby v. Potts 2194, 2199
v. Portland R. Co. 556, 561, 568, 682,
1867, 2509
507
321, 556, 1890, 1944
1081
1131
663
1198
2103
V. State
V. Wells
Cross V. Her
V. State
V. Syracuse
Crossman v. Keister
Crotty V. Chicago G. W. R. Co,
Crowell V. State
Crumm v. Allen
Cryer v. McGuire
Cudlip V. Journal Pub. Co.
Cuesta V. Goldsmith
Cuff V. Frazee S. & C. Co.
1072, 1079
1404
1463
18, 206
492
1312, 1405,
1725
Cully V. Northern Pac. R. Co. 2319
Culpepper v. State 254
Culver J). Carroll 2408
V. South H. & E. R. Co. 2115
V. Waters 1705
Cumberland G. M. Co. v. Atteaux 754
Cumberland Tel. & Tel. Co. v. Peacher
Mill Co. 1976
V. St. Louis I. M. & S. R. Co. 2579
V. State
2259, 2281
SECTION
Cummings v. Farnham 283
V. Gourlay 1530, 1532
Cunard S. S. Co. v. Kelley 41
Cunniff v. Cunniff 1081
Cunningham v. Clay 458
^ V. Dody 2509
V. People 1761
Cunnion's Will 2314, 2523
Cupps V. State 118
Curran v. Holland 2438
Curry v. State, 117 Md. 367
50 Tex. Cr. 667
Curtice v. Dixon 261
Curtin ®. Boston Elev. R. Co. 2509
Curtis V. Beaney 2319
V. Lehmann 1819
'v. N. Y. N. H. & H. R. Co. 792
Curtis & G. Co. v. Pribyl 290, 451
Curtsinger v. McGown 1073
Custer V. Fidelity M. A. Ass'n 93, 2452
Cutler !). State 2273
Cutter-Tower Co. v. Clements 1200
Cutts V. Boston Elev. R. Co. 436
Cuyler v. Wallace 2516
Cyr V. De Rosier 1210
D
Dady ». Condit 463
Dale's Appeal 1081
Dallas C. E. St. R. Co. v. McAllister 905
Daly V. Simonson 2416
Danahy v. Kellogg 1862, 2221
Dancel v. Goodyear S. M. Co. 2193, 2195,
2220
Daniel v. Com. 1442
V. New Era L. Co. 2477
Daniels v. State 851, 852, 860
Dardanelle P. B. & T. Co. v. Croom 1951
Darnell «. State 19
Darrell v. Com.
Ky., 82 S. W. 282
Ky., 88 S. W. 278
Darrow, in re 1618
Darst 1). Doom 2620
Dashwood v. Magniac 2464
Davenport v. Davenport 1736
Davenport Co. v. Pennsylvania R. Co. 2319
Davidson v. Hurtz
V. Watts
Davidson S. S. Co. v. U. S.
Davie v. Lloyd
2438
523, 987
18, 95, 283,
916
1561
722
TABLE OF CASES CITED
SECTION
Davies, re 2286
V. Bierce 2442
V. Sovereign Bank 1856
Davis V. Adair 1727
V. Adrian 792
V. Arnold 657
V. Coblens 1890
V. Collins 1876
V. Com. 2595
V. Davis 1058
V. Fidelity Fire Ins. Co. 2442
V. First Nat'l Bank 1810
D. Kornman 252, 283, 458, 461,
1951
V. Moyles 1257, 1483, 1490, 1573,
1662, 1672
V. Oregon S. L. Co. 568
V. Pennsylvania R. Co. 463, 654
V. People 63
I). Pursel 2498
V. Seaboard A. L. R. R. Co. 792
V. Seybold 2165
V. State, 141 Ala. 2572
145 Ala. 2276, 2375
168 Ala. 1326
96 Ark. 688, 2061
46 Fla. 177
47 Fla. 177, 749, 760
120 Ga. 1842, 2060
122 Ga. 852
85 Miss. 1021
8 Okl. Cr. 1476
45 Tex. Cr. 2242, 2311
D. Stephenson 1073
V. Yonge 2054
Dawson v. Orange 1582
T. Waggaman 1777
Day V. State 1732
Daytona Bridge Co. v. Bond 1073
Dean b. Dean 1303
V. Kansas C. St. L. & C. R. Co. 437
V. State 2063
V. Wabash R. Co. 688, 795
Dearborn v. Newhall 2350
Dearden v. San Pedro L. A. & S. L. R.
Co. 2509
Deaton v. Com. 851, 2059, 2060
Decatur v. Barteau ■ 1680
V. Vaughan 1869
Deck V. Bait. & O. R. Co. 1270
Decker v. Stansberry 2472
V. Chicago, M.-& St. P. R. Co. 681
Deeder v. State 1240
SECTION
Deepwater Council v. Renick
2169
Degg 11. State
1669, 1842
De Graff v. Manz
2408
V. State
967
Delahoyde v. People
2497
Delaney v. Berkshire St. R. Co. 288, 1856
V. Framingham G. F. & P. Co.
1530, 1639
V. Jackson • 2439
V. State 1966
Delaware Indians v. Cherokee Nation 2415
De Leon v. Terr. 1212, 2339
Delger v. Jacobs 2297
Dell V. McGrath 461
De Loach v. Newton 1350
Demelman v. Brazier 2536
Deming Inv. Co. v. Shawnee F. Ins.
Co. " 2434
V. Wallace 2416
De Montague v. Bacharach 1066
Denbeigh i). Oregon- Washington Nav.
Co. 65
Denham v. Com. 177, 2356
Dennison, ex p. 21
Dennison v. Barney 2408
Denton v. Mammoth S. E. L. & P. Co.
2509
Denunzio's Receiver v. Scholtz 2310, 2311
Denver «. Spencer 2451, 2509
Denvef City T. Co. v. Gawley 1696, 1700
V. Hills 15, 2509
V. Lomovt 1041
V. Norton 966, 2220
J). Roberts 2220
Denver & R. G. R. Co. v. Burchard 461
V. Scott 1958
Deppe V. Atlantic C. L. R. Co. 1976
Depue, re 2199, 2201
De Renzes v. His Wife 1382
Derosia v. Loree 2451
Desha's Adm'rs v. Harrison Co. 2450
Devencenzi v. CassineUi 2432, 2498
De Yampert i). State 19
De Yoe v. Seattle Elec. Co. 2509
Diamond v. State 1354
Diamond B. C. Co. v. Cuthbertson
2507, 2552
Diamond Distilleries Co. v. Gott 2419
Diamond Glue Co. v. WietzychowskL 747
Diamond Rubber Co. v. Harryman 283, 458
Diaz V. U. S. 1398, 1399
Dick fl. Albers 2503
V. State 18
723
TABLE OF CASES CITED
SECTION
Dick V. Supreme Body
2380
V. Zimmermann
1890
Dickey v. State
278
Dickinson v. Boston
1576
V. Dickinson
2220
V. Kansas C. E. R. Co.
2220
V. Smith
2143, 2144
V. State
56
Dieterle v. Bekin
2508
Dietrich v. Kettering
16
Dietz V. State
363
Dillard v. Jones
2477
V. State
1974
V. U. S.
318, 1021
Dillman v. McDanel
229, 232, 664
Dillon V. State
2079
Dimmick v. U. S.
392
Dimond v. Henderson
291
Di Palma v. Weinman
1198
Di Frisco v. Wilmington C. R. Co. 1750
Director of Pub. Pros. v. Blady 2239
District of Columbia v. Armes 252
V. Dietrich 1750
V. Duryee 1161
Ditto V. Slaughter 261
Ditton «. Hart 681
Dixon V. Northern P. R. Co. 1750
V. State 1976
11. Union Ironworks 1081
Dobbins v. Little Rock R. & E. Co. 811
Dobbs V. State 73
Dodd V. Kemnitz 2410
V. State 905
Dodge V. The King 1908
V. Rush 398
Doe V. Edmondson 254, 1587
V. Marr ^ 166, 1605
V. Nepean 2531
V. Perkins 735
Doidge V. Mimms 2065
Dolan V. Boott Cotton Mills 464
Dolbeer's Estate 21, 569, 676, 689, 905,
1081, 1416, 1415, 1115
Doll V. Equitable Life Ass. Soc'y 5
Dolph V. L. S. & M. S. R. Co. 1404, 2509
Domenig, re 2235
Dominici's Estate 2314, 2474
Dominion Fish Co. ji.ilsbester 2509
Donaldson v. N. Y. N. H. & H. R.
Co. 1018
Donk Bros. C. & C. Co. v. Stroetter 616
Donnan v. Donnan 2336, 2337
Donnellan's Estate 2474
Donnelly v. Chicago City R. Co.
Donner v. State
Donovan v. Connecticut Co.
!). Selinas
SECTIO^f
663
749
2494
1072
Dorian v. Westervitch 1956, 1966, 2132
Dorman v. State 1405
Dorn & McGinty v. Cooper ' 1871
Dorr V. Atlantic S. L. R. Co. 1750
!). Midelburg 2408
Dorr Cattle Co. v. Chicago & G. W. R.
Co. 2153, 2580
Dorrance v. Dearborn Power Co. 747
Dossett V. St. Paul & T. L. Co. 208, 461,
969
Dotson V. State 988
Dotterer v. State 949, 987, 1005, 1270
Dougherty v. White 392
Douglas V. Bolinger 2477
V. Terr. 1013
Douglas L. Co. v. Thayer 1566
Douglass V. Ague 1616, 1800, 2349, 2354
V. State 2513
Dover v. Greenwood 1415, 1417
Dovey v. Lam 609
Dow V. Bulfinch 460
Dowagiac Mfg. Co. v. Lochren 2195, 2200,
2210
Dowdell V. U. S. 1398
Dowell v: State IS, 41
Dowie V. Priddle 73, 207
Dowler, in re 1521
Downing v. Buck 1971
V. Farmers' M. F. Ins. Co. 2570
Downs V. Blount 7
V. Swann 2265
Doyal V. State 248
Doyle V. Burns ^ 1014
V. London Guarantee & A. Co. 2270
J). U. S. 1079
Dozier v. State 2183
Drake v. Holbrook 1070
Draper v. Douglass 1778
Drefahl v. Security Sav. Bank 1461
Drew V. Drew 1644
Drewson v. Hartje P. M. Co. 1684
Driggers u. D. S. 1126, 1128, 1129, 1405,
1605, 1664, 2060, 2061
Driver v. King 1960
Droney v. Doherty 437, 2509
Druhe H. L. Co. v. Fishbein 2388
Druin ». Com. 1841
Dryden v. Barnes 747
Drysdale's Succession 2452
724
TABLE OF CASES CITED
SECTION
Dubois, in re 1700
Du Bose V. Conner 289
®. State 1977
Diicharne v. Holyoke St. R. Co. 1010
Duckworth «. Duckworth 2065
Dudley V. Niswander 1058
Duflfey V. Scientific A. C. Dept. 2437
Dugan V. Arthurs 571
Duhme v. Hamburg-Amer. Packet
Co. 2509
Dukes II. Davis 905
DuUigan v. Barber A. P. Co. 451
Dumas V. Clayton 907, 916
Dunahugh's Will 785, 1736, 2500
Duncan v. Atchison T. & S. F. R. Co. 1951
V. Eagle Rock G. M. & R. Co. 2477
V. Grand Rapids 252
V. State 111
Dungan v. State 987, 1808
Dunham v. Cox 1725
i'. McMichael 2155
D\mk V. State 905, 1043
Dunkin v. Hoquiam 1674, 2180
Duiilap V. State 2506
Dunn V. Com. 894
V. Gibson 2061
V. People 784
V. State
143 Ala. 247, 396
162 Ind. 20, 987
166 Ind. 2497
Dunn, matter of 2572
Dunning v. West 612
Dunston Lithograph Co. v. Borgo 2416
Dupree v. State 367, 1976
Dupuis V. Saginaw V. T. Co. 1164, 2498
Durant, in re 278, 1388
Duren v. Thomasville ' 2183, 2264
Durham v. State 290
Durkee «. Winquist , 2066
Duthey v. State 1938, 2501, 2519
Dyar v. U. S. 321
Dyer v. Maine C. R. Co. 2505
V. Marriott 1573
E
Eacock V. State
Eadie v. Chambers
Eads V. State
Earley v. Winn
Earnhardt v. Clement
Earp V. State
280, 352, 1890
1290
788, 987, 1243, 1263
73, 74, 207, 406
1871, 2495
1978
SECTION
East Tennessee & W. N. C. R. Co. ».
Lindamood 41, 2508
Eastern Dynamite Co. v. Keystone
P. M. Co. 1225
Eastern Texas R. Co. v. Scurlock 1041
Eastman v. Boston Elev. R. Co. 1985
V. Dunn 561, 120&
V. Moulton 1544
V. Sherry 2199
Eatman v. State 331, 581, 749
Eaton V. Com. 1072
V. N. Y. C. & H. R. R. Co. 2509
Ebbs, in re 522
Eberson v. Continental Ins. Co. 747
V. Investment Co. 759
Ebert v. Metropolitan St. R. Co. 1031, 1263
Echols V. State 111, 716
Eckels & S. I. M. Co. v. Cornell E.
Co. 1700, 1861, 2125
Eckert d. Century F. Ins. Co. 2415
Eckhout V. Cole 784, 2304
Ector II. State 2239
Edelstein v. U. S. 2281, 2282
Edgell V. Francis 1730
Edgerly's Estate 1388
Edinburgh Life Ass. Co. v. Y. 321
Edison El. L. Co. v. U. S. El. L. Co.
2200, 2307, 2319
Edleman v. Edleman 2536
Edmonds v. Edmonds 2067
Edmondson v. Birch 1859
Edmonson v. State 833
Edwards v. Burke 969
V. Edwards 1382
V. Manufacturer's B. Co. 2509
V. State 1405
Eesley Light & P. Co. v. Common-
wealth P. Co. 1388, 1944, 2591
Effler V. State 347
Egelston v. New York C. & St. L. R.
Co. 461
Eggleston v. Advance T. Co. 2416
Einstein v. HoUaday K. L. & L. Co.
1530, 1705
El Paso & S. W. R. Co. v. Foth 1350
Elastic Tip Co. ji. Graham 2410
Elbert V. Mitchell 321
Eldorado Jewelry Co. v. Darnell 2416
Eldridge v. Compton , 18
Electric Park Amusement Co. ■».
Psichos 2484, 2592
Electric Welding Co. v. Prince 2558, 2573
Elgin A. 85 S. Traction Co. v. Wilson 681, 2509
725
TABLE OF CASES CITED
SECTION
SECTION
Elgin J. & E. R. Co. v. Lawlor
2498
Evans ». Evans
v. Thomas
1249
N. J. Eq. 59 Atl.
2047
Elias V. Terr.
1803
93 Ky.
64
Elkharf H. Co. v. Turner
2169
V. Freeman
2444
EUenberg v. Southern R. Co.
1876
V. State
EUiff V. Oregon R. & N. Co.
1067
165 Ind.
2061, 2063
EUington V. Harris
2536
5 Okl. Cr.
2304
Elliott V. Kansas City
2329, 2389
12 Tex. App.
1405
V. Murray
2408
V. Taylor
1665
V. Sheppard
1523, 2498
V. The Josephine Mills
1951
V. U. S.
2313
Everett's Will
2503
V. Western Coal & M. Co.
1777
Everett v. People
2511
Ellis V. Block
2556
Evers v. State
505
V. Republic Oil Co.
2510
Ewell V. Ewell
1497, 2528
Ellison V. Glos
1225
Ewen V. Halston
2467, 2474
Elmore v. State
605
V. Wilbor
18, 1675
Elmsley v. Miller
2319
Ewing V. Lanark Fuel Co.
1157
Elmslie v. Thurman
1201, 2596
V. Lunn
2354
Elston V. McGlauflin
1166
F
V. Montgomery
1511, 1513
Ely-Walker D. G. Co. v. Mansui
1032
Fabian v. Traeger
334
Elyea-Anstell Co. v. Jackson
Garage
Fadden v. McKinney
41, 1960
2441
Fadner v. Hibler
2520
Elzig V. Bales
795
Fairfield v. U. S.
2200
Emerson v. Wark
916
Fairgrieve v. State
2056
Emmet v. Perry
1567, 1778
Fall V. Fall
1257
Emmons v. Harding
2408
Fallon V. Rapid City
1722, 1750
Emory v. Eggan
75, 258
Fallon's Estate
2048
Empire Life Ins. Co. v. Einstein
2271
Fannie v. State
1440, 2243
Encyclopedia Brit. Co. ii. American N.
Fannin v. State
987, 1270
Ass'n
371
Fanning v. Green
581
Engel V. Conti
1777
Farley v. Frost Johnson L.
Co. 1066
V. United Traction Co.
199, 282
Farlinger v. Thompson
1329
English V. Ricks
2300, 2337
Farmer v. Storer
2199
Enid & A. R. Co. v. Wiley
18, 1225,
». Towers
2085
1239
Farmers' Bank v. Barbee
1778, 1779
Epstein v. Pennsylvania R. Co.
2388, 2389,
Farmers' National Bank v.
Venner 2536
2390
Farmers' & Merchants' Bank v. Wood 2103
Erdman v. State
760
Farnham v. Colman
1858
Erickson v. American S. & W. Co. 461,
Farnum v. Whitman
1971
1951, 1976
Farquhar v. Farquhar
2433
Erie R. Co. V. Schomer
2509
Farrell v. Dubuque
252
Erler v. Erler
2408
V. Haze
754, 1158
Erwin v. Fillenwarth
1958
V. Phillips
987
Esch V. Grave
1154
Faucett v. State
2270, 2279
Escher v. Carroll Co.
1951
Faustre v. Com.
1644
Esler V. Camden & S. R. Co.
2496
Fay V. Walsh
759
Essex V. Day
2416
Faytre v. North
2465
V. Ksensky
18
Fearington v. Blackwell D
T. Co. 2509
Estes V. Chicago B. & Q. R. Co.
1976
Fearn v. Postlethwaite
582
V. Missouri P. R. Co.
1330
Feder Silberberg Co. v. McNeil 95
Etly V. Com.
142
Federal Betterment Co. v.
Reeves 21, 568,
Etzkorn v. Cedar Rapids
1005
676, 688, 1719
726
TABLE OF CASES CITED
SECTION
Federal U. Surety Co. «. Indiana L.
& M. Co. 759, 1073, 1077, 1234, 1557
Feigleman v. Montreal St. R. Co. 2319
Felix V. Caldwell 1269, 2110
V. FideUty M. L. Ins. Co. 1073
Felsch V. Babb 1158
Felkel v, O'Brien 2477
Felker v. Breece 1189, 1194
Felts, in re 6
Felts I). Murphy 1393
Fender v. Ramsey 1708
Fenn v. Georgia R. & E. Co. 2210
Fentum v. Pocock 2444
Ferance v. Forestdale Mfg. Co. 1754
Ferguson v. State 1003, 1021
Ferrell v. Ellis 2577
Ferrick v. Eidlitz 2509
Ferry v. Henderson 18, 1944
Ferry-Halbeck Co. v. Orange H. B.
Co. ' 1890
Fey V. I. O. O. F. Ins. Soc'y 1073, 1671
FfoUiott V. Lord 392
Fidelity & D. Co. v. Aultman 1187
1). Champion I. M. & C. S. Co. 1530
Fields V. State -• 2061
Fife V. Cate 2498
Fifer v. Clearfield & C. C. Co. 1064, 1078,
2596
Fike V. Atchison T. & S. F. R. Co. 65
Finch V. Com. 1072
V. Zenith Furnace Co. 17
Fincher v. State 951, 1022
Findley v. State 1451
Finlen v. Heinze 963
Finn v. New England T. & T. Co. 1003, 1062
V. Winneskiek Dist. Ct. 2210, 2212
Finnegan v. S. W. S. Mfg. Co. 451
Finnes v. Selover B. Co. 1404, 1668
Fire Ass'n of Phila. v. Farmers' Gin Co. 714
Firebaugh v. Seattle El. Co. 2509
Firemen's Ins. Co. v. Seaboard A. L.
Co. 1530
First National Bank v. Blakeman 1106,
1108, 1109
V. Burney 2444
V. Chandler 1984
V. Glenn 530
V. Miller 367
V. Nordstrom 2536
V. State 905
V. Tolerton 2446
V. Wright 2240
V. Yeoman 747, 754
SECTION
First Nat'l Bldg. Co. v. Vandenburg 1561
First State Bank v. Borchers 2415
Fish V. Bloodworth 616
V. Fish 2503
B, Poorman 2391, 2498
Fishburn v. Burlington & N. W. R.
Co. 1719
Fisher v. Boston & M. R. Co. 458
V. Chicago ' 2578
V. Terr. 2059
V. Travelers' Ins. Co. 289
V. Weinholzer 1621
Fishman v. Consumers' B. Co. 451
Fitch V. Martin 377
V. Traction Co. 1414, 2509
Fitter v. Iowa Tel. Co. 283
Fitzgerald 1). Allen 1911
V. Benner 1777, 1963, 2155
V. Langley Mfg. Co. 1976
V. Southern R. Co. 2509
V. State 2062
Flanagan v. Mathieson 2522
V. People 153, 2512
Flanary v. Com. 2281
Flannery v. Central B. Co. ' 1415
Fleming v. Morrison 2406
V. Northern T. P. Mill 252
V. Toronto R. Co. 735
Flemister v. Central Ga. R. Co. 463
Fletcher v. Com. 1018, 1873
V. Dixon 1951, 1974
Flint V. Flint 1890
V. Stockdale's Estate 784
Flint R. L. Co. v. Smith 1651
Flohr V. Terr. 987, 2115
Flood V. Flood 2463
Floore v. Green 617
Flora V. Mathwig 18
Floral Creamery Co. v. Dillon 18
Florman v. Dodds & C. Ex. Co. 2415
Florscheim v. Fry 1633, 1680
Floto V. Floto 1738, 1873
Flowers v. Flowers 1738
V. State, 85 Miss. 1873, 2115
Okl. Cr. 138 Pac. 398,
Flynn v. Butler 2446
V. Coolidge 1729
V. Flynn 2408
V. Kelly 1236
V. People 2511
Fodey v. Northern Pac. R. Co. 455, 2509
Fodor V. Fuchs 209
Fogg V. State 1442, 1451
727
TABLE OF CASES CITED
SECTION
Folds V. State 851
Foley V. Northern Cal. P. Co. 1976
V. Pioneer M. & M. Co. 437, 1976
V. Eay 2572
Fonder v. General Construction Co. 283
Fonville v. Atlanta & C. A. L. R. Co.
1476
Foote V. Foote 2046
Forbes v. Omaha 1168
Ford V. Ford 68, 1352
V. Kansas City 235
V. Providence C. Co. 1158
V. State 2100
Foreman v. Archer 2408
Forney v. Ferrell 1081
Forrester v. Hurtt 1339
V. Southern Pac. R. Co. 1078
Fort Smith & W. R. Co. v. Winston 1960
Fort Wayne & W. V. T. Co. v. Ronde-
bush 1750
. Fort Worth Belt R. Co. «. Cabell 1 1 12
Fort Worth & D. C. R. Co. v. Roberts
2450
Fosha V. Prosser 2442
Foss V. McRae 2525
V. Portsmouth D. & Y. R. Co. 461
V. Smith 792
V. Van Wagenen 20
Foster v. Atlanta R. T. Co. 290
V. East Jordan L. Co. 1976
V. Hobson 1072
V. Shepherd 1671, 1726, 2115
!).,U. S. 1557
Foster-Milbum Co. v. Chinn 1944
Fothergill d. Fothergill 1081
Foulke V. Bray 1190, 1226
Fountain v. Connecticut F. Ins. Co. 451
V. Wabash R. Co. 719, 1704
Fountain's Adm'r v. Ware 912, 2103
Fountaine, in re 1521
Fountaine v. Wampanoag Mills 451
Fourth National Bank v. Common-
wealth 463
Fowler, re 2235
V. Delaplain 1960
V. Iowa Land Co. 21
V. Stebbins 2529
Fowler's Will 1081, 1738
Fowles V. Joslyn 2102
Fowlkes J). Lea 2433
Fox V. Manchester 266
V. Spears 2297
V. State 1387
SECTION
Fraley v. Fraley 228
Franey v. Union Stockyard & T. Co. 461
Frank v. Berry 694, 2021
V. Gump 2536
V. Hanly 252
!). State 59, 363, 988, 1807
Franklin v. Atlanta & C. A. L. R. Co.
747
V. Com. 1850
V. Engel 252, 458
V. Killilea 2420
V. State, 145 Ala. 276, 1254
53 Tex. Cr. 2060
V. U. S. 18
Frauenthal v. State 963
Frazier v. State 2239
Freasier v. Stale 507, 1821, 1828, 1832
Freda v. Tischbein 1779
Frederickson v. Iowa C. R. Co. 93
Free v. Southern R. Co. 1271
V. Western Union Tel. Co. 1856
Freehart v. Stanford 1548
Freeman v. Blount 2511
V. Freeman 608, 1938
V. Grashel 1976
V. State 18
Freeport v. Isbell 2220
French v. Millville Mfg. Co. 1074
V. State 398
Freund v. Becker 1738
Friday v. Pennsylvania R. Co. 654
Friend v. Yahr 2530
Frierson v. Frazier 283
Fritz V. Chicago G. & E. Co. 1960
Frohs V. Dubuque 283
Frontier Steam Laundry Co. v.
Connolly 461
Frost V. Barber 1856
Fry's Will 1512
Frye v. GuUion 2498
Fudge V. Marquell 1064, 1640, 2596
Fuhry v. Chicago City R. Co. 1719
Fuller V. New York L. Ins. Co. 2531
V. Rapid Transit Co. 2220
V. Robinson 19, 1730, 2242
V. Saxton 1605
■V. State 987
V. Stevens 715
Fuller Co. v. Darragh 969
Fulsom-Morris C. & M. Co. »,
Mitchell 288
Fulton V. Andrew 2503
Funderburk v. State 357, 949, 1034
728
TABLE OF CASES CITED
Fuqua V. Com. 944, 1398,
Furlong & Meloy v. American C,
Ins. Co.
V. North B. & M. Ins. Co,
Fussell V. State
SECTION
1413, 1669
F.
1058
751
1126
Gage V. Cameron
V. Chicago
Gaines v. State
Galbraith v. Starks
Gale V. State
Gallagher v. People
Galvin v. Beals
Gamble v. Riley
Gang Gong, in re
Gannon v. Moles
Gano V. Gano
Ganow v. Ashton
Gardam & Son v. Batterson
Gardiner v. McDonough
Gardner v. Porter
V. State
V. Welch
Garfield v. Peerless M. C. Co.
Garland v. Clarkson
Garlich v. Northern P. R. Co.
Garner v. Stamford
V. State
Garnier's Estate
Garran v. Michigan C. R. Co.
Garrett v. St. Louis Transit Co.
V. Weinberg
Garrison v. Case T. M. Co.
V. Com.
V. Glass
Garrus v. Davis
Garske v. Ridgeville
Garvik v. Burlington C. R. & N,
Co.
124 la.
131 la.
Gaston v. State
Gater d. State
Gauss, ex parte
Gay V. Gay
Gazelle, The
Gearty v. City of N. Y.
Gebus V. Minneapolis St. P. &
M. R. Co.
Gee Cue Beng v. U. S.
Geiger v. State
2465
2525
1138
1539
1390
1116
377
2410
1354
2437
2477
772, 1681
95
2434, 2463
2496
1447, 1449
2437
2440
1856
1890
1750
821, 1880
2477
571
2273
529
2435
905
1254, 2124
1958
458, 2034'
. R.
1150
1135
1807, 2060
290
2271
2579
562
1777
S. S.
1750
1354
1072
General Conference Ass'n
gan S. & B. Ass'n
General Hospital Soc'y
Haven R. Co.
Genest 11. Odell Mfg. Co.
SECTION
Michi-
1678, 1681
New
2155
949, 987
Georgia F. & A. R. Co. v. Sasser 285, 1415
Georgia Iron & C. Co. v. Ocean Ace.
■ & G. Co. 2465
Georgia N. R. Co. v. Hutchins 20
Georgia R. Co. v. Oaks 1126
Georgia R. & B. Co. v. Andrews 1013
Georgia R. & E. Co. v. Dougherty 2570
V. Gilleland 1974
B.Harris 2494
V. Wallace 1062
Georgia S. F. R. Co. v. Cartledge 283
Gerhardt v. Tucker 2434
German-American Ins. Co. v. Brown 15
V. Paul 2341
German Ins. Co. v. Chicago & N. W.
R. Co. 1951
Gesell V. Baugher 233, 2500
Getty V. Getty 2067
Geveke v. G. R. & I. R. Co. 1976
Gfeller, ex p. 2210, 2261, 2268, 2309, 2329
V. Lappe 2523
Gharst V. St. Louis T. Co. 2165
Gibbins v. Metcalfe 1856
Gibbons v. Gibbons C. M. & M. Co.
2433, 2437
V. Terr. 451, 1005, 1071, 2115
Gibbs V. Potter
Gibson V. Anderson
11. Boston
V. Holmes
V. Maine C. R. Co.
V. Seney .
V. Snow
V. State
Gick V. Stumpf
Giffin V. Martel
Gifford V. People
1198
1350
1048, 1076
2450
2510
321, 1029
2307
2100
1738
437
1614
Gila Valley G. N. R. Co. v. Hall 1072, 2549
V. Lyon \ 1951
Gilbert v. State 56
V. The King 1730, 1750
Giles V. Giles 1576, 1736, 2495
Gillam v. State
Gillespie v. Ashford
V. State, 49 Tex. Cr.
Tex. Cr., 166 S. W.
Gilliland v. Board
2056
2355
398
2059, 2264,
2273
728," 1605
729
TABLE OF CASES CITED
SECTION
Gillispie'sEx'r v. Gillispie 1738
Gillman v. Media M. A. & C. E. R. Co. 682
Gillotti V. State 1130
Gilmore v. Jenkins 2471
V. Lee 2503
V. State 247
Ginn v. Dolan 2489
V. Pennsylvania R. Co. 2509
Gipe V. State 1442
Gird's Estate 133, 987
Glanton v. Griggs 803
Glanz V. Ziabek 1664, 1911
Glaser v. Glaser 20
Glasgow V. Metropolitan St. R. Co. 1040,
1976
Glass V. State 276, 949
Glass' Estate 233, 1738, 1958
Glassington, re 2463
Gleason's Estate 1738
Gleason v. Daly 1041
Gleeson v. Virginia M. R. Co. 2509
Glenn v. Augusta R. & E. Co. 1013
Glickstein v. U. S. 2281
Glidden v. U. S. Fidelity & G. Co. 1576
Glos V. Ault 2515
V. Cessna 1705
V. Dyche 1678
V. Holberg 1705
V. Holmes 1269
V. Patterson 1705
V. Talcott 1705
V. Wheeler 1705
Glover v. State, 129 Ga. 562
137 Ga. 1442
V. U. S. 987
Godair v. Ham. Nat'l Bank 1013, 2155
Goddard v. Enzler 1921
Godfrey v. Dixon P. 8s L. Co. 378
V. Faust 21
V. Phillips 1349
V. Rowland 1521, 1644, 2063, 2527
V. Smith 2050
Godwin v. State 1063
Goforth V. State 276
Goldborough v. Orem 1971
Goldenberg v. Law 2354
Goldschmidt v. Ins. Co. 1073
Goldsmith v. Marcus 2429
V. State 1819
Goltra J). Pentland 1890, 2065
Gomes v. New Bedford Co. 1976
Gonzales v. Williams 1354
Gonzalus v. State 861
SECTION
Good V. Williams 2408
Good & Co. V. Central C. & C. Co. 2446
Goodman v. Saperstein 1334
V. State 1750
Goodpaster v. Voris 2199
Goodrich's Estate 1644, 1646
Goodwin v. Blanchard 4, 2354
Gordon v. Conley 2203
■V. Knott 2536
V. Munn 1033, 1133
V. State
140 Ala. 396, 987, 1618
147 Ala. 1821
Gordon Bros. v. Wageman 1681
Gore V. People 2100
Gorgas V. Philadelphia H. & P. R. Co. 463
Gorham v. Moor 1081, 1938
V. Settegast 1483, 1761
Goslin V. Com. 1249, 2042
Gosnell v. Webster 2120
Goss V. Goss 18, 953, 1051
Gossage v. Phila. B. & W. R. Co. 716, 1640
GosseUn v. King 488, 2245, 2337
Gossett V. State 390, 1808
Gossler v. Wood 2124
Gould, ex parte 2200,' 2287
Gould V. Bebee 64
V. Day 18
V. Hartley 1530
■u. Hurley 2408
V. Magnolia Metal Co. 80
V. Seminary 1302
V. U. S. 1732
Gove V. Tacoma 2451
Gowdy V. Gowdy 1085
Goyette v. Keenan 1567, 1777
Grabill v. State 1270
Grabowski v. State 398, 617
Gracz V. Anderson 282, 969
Graden v. Mais 2450
Graff V. People 1079, 2236
Graham v. Deuterman 1938
V. Dillon 1549, 1560
V. Grand Trunk R. Co. 2570
■B. Middleby 2466, 2525
11. Remmel 2408, 2409
V. State 396
Grand Lodge v. Banister 1671, 2510
V. Bartes 1486, 1490
Grand Trunk R. Co. v. Griffith 2510
Grand Trunk Western R. Co. v.
Poole 461
V. Reynolds 664, 2510
730
TABLE OF CASES CITED
SECTION
Grant v. State
141 Ala.
406
122 Ga.
276, 784
V. U. S.
1750
Grant's Will
1511
Graves v. Broughton
2465
V. Rivers
488
V. Rose
2477
Gray v. Chicago R. I. & P.
R. Cc
.
377,
1976,
2510
V. James
2416
V. Kelley
770,
1576
V. State, 4 Okl. Cr.
967
55 Tex. Cr.
2221
Grayson v. State
950
Graziani v. Burton
1684
Grebenstein v. Stone &
Webster
Eng. Co. 208,
1062,
1856,
2115
Green, re
2268
V. Brooks
285
V. Com.
855,
2100
V. Dodge
392,
1042
V. Miller
1971
B. State
143 Ala.
246
168 Ala.
860
124 Ga.
852
1329
125 Ga. 396
568,
1329,
1842,
2085
89 Miss., 42 So.
1452
49 Tex. Cr., 90 S.
W.
1128
V. Terminal R. Ass'n
2383
X. Western Amer. Co.
208
Green's Adm'r v. Maysville
&B.S.R.
Co.
1164
Greene, in re .
2195
Greene v. Hitchcock
1302,
1303
1304
». Messick G. Co
1195
V. Murdock
21
V. U. S.
1530
Greene's Estate
2329
Greener v. General Elec. Co.
1750
Greenlee v. Mosnat
1409
1669
Greenwald v. Ford
2018
Greenway v. Taylor Co.
1974
Greenwood v. Boston & M
R. Co.
65
,2510
V. State
851
,2071
Greer v. Com.
1841
V. Union St. R. Co.
944
Gregory v. American Thread Co.
451
V. Detroit U. R. Co.
252, 458,
949
SECTION
Gregory v. State
140 Ala. 247,
1033, 1034,
1440
1966, 2595
Tex. Cr., 94 S. W.
63
V. Wabash R. Co.
571
V. Woodbery
1671
Greinke v. Chicago City R. Co.
21, 688,
2509
Gremley v. Stubbs
. 2508
Gress Lumber Co. v. Georgia P. S.
Co. 704
Grey v. Callan 1624
Griesa v. Mutual L. Ins. Co. 1856, 1862
Griffin v. Boston & M. R. Co. 1521, 1530
V. State 200
II. Working Woman's H. Ass'n 2008,
2015, 2016
Griffiths 11. State 2071, 2273
Grill V. O'Dell 682, 689
Grilley v. Atkins 2408
Grimm v. Omaha El. L. & P. Co. 2510
Grinisley v. Singletary 2416
Griner v. State 855, 861, 866
Griswold v. Griswold 258, 2408
V. Nichols 1779
Groff V. Groflf 797, 2004, 2015, 2016
Grogan v. Dooley 283
Gronvold v. Federal U. S. Co. 1419
Groot V. Oregon Short Line _ 18
Gross V. State ' 2339
Grotjan v. Rice 2094, 2498
Grout V. Moulton 2465
V. Stewart 581
Grove, in re 2212, 2375
Groves & S. R. R. Co. v. Herman
1168, 2354
Grubb V. Milan 2434
Grueber Eng. Co. v. Waldron 2442
Grunberg v. U. S. 285, 747, 754, 1530, 2273
Guardian F. & L. Ass. Co. v. Quebec 2509
Guild V. Pringle 1750
Guillaume v. Flannery 608
Guimond v. FideUty P. F. Ins. Co. 1062
Guinasso v. Arata 1278, 2052
Guinasso's Estate 1278, 2052
Guinn v. Warbutton 2450
Guiou V. Thibeau 2442
Gulf C. & S. F. R. Co. V. Johnson 1270
V. Matthews 261, 1005
GuUiford v. McQuillen 19
Gump V. Gowans 582, 1292
Gunn V. Turner 1573
V. Union R. Co. 2495
731
TABLE OF CASES CITED
Gunter v. State
2513
Guse V. Power & M.
&M
Co.
461
,1890
Gussner v. Hawks
1893
,2103
Guthrie v. Carey
944
V. Field
2419
V. Harkness
1858
Gutmann i). Klimek
1404
Guy V. Lanark Fuel Co.
250
Gyntlier v. Brown & McCabe Cc
.
199
Gzowski V. Forst
H
2155
Haaren v. Mould
2579
Haas V. Chubb
1521
Hackett's Appeal
2531
Hackley Nat'l Bank
D. Barry
2446
Haddock B. & Co. v
Haddock
2445
Hadley v. Board
463
Hagar v. Norton
233
,1738
Hagerty v. Webber
1523
Hainlin v. Budge
2507
Halbert v. Pranke
2232
Halde v. Schultz
1938
Hale, re
2252,
2281,
2281a
V. Hale
2416
V. Henkel
2200
2252,
2258,
2259,
2264
2270
2281
V. Leighton
291
Hales v. Kerr
457
Haley v. State
1432
Hall !). Callingham
1281
V. Hall
1347
V. Kary
2410
V. Reinherz
7
1576
V. Vanderpool
285
Hallenbeck v. Chapman 2442
Halliday M. Co. v. Louisiana &. N. W.
R. Co. 571
Hallum V. Omro 252, 1976
Halsell V. Renfrow 2454
Halston, in re 2467, 2474
Halvorsen v. Halvorsen 2433
Halverson v. Seattle El. Co. 451, 1558
Halwas v. American Granite Co. 907
Hamann v. Milwaukee B. Co. 461, 1951
Hamblin v. State 2349
Hamill V. Schlitz Brewing Co. 2450
Hamilton v. Diefenderfer 1058
• V. Michigan C. R. Co. 223
V. Plunkett 2195, 2286
». State 1013
V. U. S. 661, 569
SECTION
Hamilton Coal Co. v. New York &
P. C. & C. Co. 2465
Hamlett v. McCreary 1350
Hamlin v. Hamlin 2408
Hammer v. Janowitz 969, 1961
Hammock v. State 2183, 2264
Hammond, ex parte 1856, 2195, 2210
Hammond v. Glos 1705
V. Jacksonville El. Co. 2509
V. McCuUough 2408
V. State, 147 Ala. 218, 1037
78 Oh. 1354
V. Wolf 2004
Hammond Lumber Co. v. Sailors'
Union 2257, 2281a
Hammond Packing Co. v. Arkansas
1859, 2218
Hammons v. State 2339
Hampton v. Hampton 2069
V. State
50 Fla. 1042, 1890, 1975
7 Okl. Cr. 2340
Hanchett v. Haas 966, 2520
Hand v. Catawba Power Co. 1976
Handy v. Smith 1415, 1519
Hanks Dental Ass'n v. Tooth Crown
Co. 6, 1381, 1856
Hanlon v. Ehrich 1261, 2115
Hanna v. Connecticut M. L. Ins. Co. 1073
V. Orient Ins. Co. 21, 1947
Hannaford v. Dowdle 2336
Hannah v. Anderson 68
Hannay v. New Orleans Cotton Exch.
' 291, 2054
Hanners v. State 950
Hannon v. State 1761
Hansell-Elcock F. Co. v. Clark 461
Hansen v. Owens 2520, 2531, 2634
V. Seattle L. Co. 262, 468
Hanson v. Lindstrom 1210, 1213
Hapai v. Brown 2582
Harbour v. State 19, 106, 1750
Hardesty v. People 1853
Hardie v. Boland Co. 2509
Hardin «. Cook 451
!). Hardin 2088
Harding v. Missouri Pacific R. Co. 20
Hardwick v. Hardwick 75, 1730, 2336
Hardy v. Com. 106, 107
y. Martin 2315
V. State 1072
Hargis v. Com. 21
Hargrove v. State 177, 2059, 2060
732
TABLE OF CASES CITED
SECTION
SECTION
Harman v. Fisher 2433
Hathaway v. Com.
851
V. Illinois & E. Coal Co. 762
V. Goslant
958
1566, 1567
V. People 2473
Hatheway v. Smith
2452
Harmening ». Howard 1186
Hanger v. U. S.
1072, 2130
Harmon v. Terr. 357, 1168, 1330
Haughton v. Mtna, L.
Ins.
Co.
266, 1073,
Harms v. Proehl ' 1111, 1971
2384, 2494
Harnett v. Holdrege 2445
Hauser v. Goodstein
1072
Harper ». U. S. 59
V. People
460
,946,
1852, 1876,
V. Weikel 1700
2034, 2118
Harper F. Co. v. Southern Exp. Co. 2508
Harriman v. Interstate Commerce
Com. " 2195
Harrington v. Boston Elev. R. Co. 289
Harris v. Basden 20
V. Brown 20, 620, 2245
». Consolidation Coal Co. 571
V. Delaware L. & W. R. Go. 341
V. Missouri K. & T. R. Co. 2552
V. Neal 62
11. Ogden S. L. Co. 252
V. People 861
V. Quincy O. & K. C. R. Co. 720, 1893
V. State
80 Nebr. 2239
Old. Cr., 137 Pac. 2497
64 Tex. 2071
Harris, George, matter of 2282
Harrison v. Ayrshire 252
V. Green i 792
V. Harrison 290
V. Remington P. Co. 1074
V. Southern R. Co. 460
V. State 988
V. Thackaberry 1969
Harrison G. Co. v. Pennsylvania R. Co.
2155
Harrold v. Terr. 821, 861, 1890, 2277
Harshaw v. State 2071
Hart V. Brierly 1086
V. Com. Ill
V. Godkin 747
V. Murdock 2477
V. State ' 1821
V. Taylor 664
Harten v. Loffler 2465
Hartford v. Maslen 1586, 2442
Hartley v. Hartley 2237
Hartwell v. Parks ' 2534
Harvey v. Terr. 1878
Haskins v. Lumsden 74
Hassam v. Safford 794, 1778, 2132
Hast V. Terr. 205, 1620
Hatch V. Brown 914, 1416
Havener v. State 1669, 1850, 2363
Havens v. R. I. Suburban R. Co. 1078
V. Sea Shore L. Co. 1573, 2141
Hawken v. Daley 1658, 1560
Hawkins v. State, 98 Md. 1440, 1442, 1460
6 Okl. Cr. 1853
V. U. S. 520, 1398, 1404, 1407,
1410, 1442, 1750
V. Windhorst 377
Hawkinson v. Otway 1511
Hawks V. Baker 1819
Hawley v. Bond 1960
V. Sumpter Valley R. Co. 455
Hawthorne v. Jenkins - 2503
Hay V. State 1770, 2062
Hayes' Estate 797
Hayes ii. Adams Exp. Co. 2415
V. Burkam 1081
V. State 390, 967
V. Wagner 1233, 2570
Haynes «. Com. 343
V. Waterville & O. St. R. Co. 223
Hays V. Claypool 1605
V. State 2276
Hazard P. Co. v. Somerville M. Co. 461
Heald V. W. U. Tel. Co. 2498
Healey v. Bartlett 460
Hearn v. Purnell 2408
Heaston v. Krieg 1938, 2391
Heath v. Deane 1586
V. State 133, 963, 987
Hebb V. Welch 2465
Hebbe v. Maple Creek 794
Heckman v. Heckman 2240
Hedden, ex parte 2259
Heddendorf v. State 861
Hedderich v. Hedderich 2475
Hedderly v. U. S. 581
Hedger v. State 1671
Hedlun v. Holy Terror M. Co. 969
Hedrick v. Southern R. Co. 2122
Heflin v. Eastern R. Co. 728
Hehir v. Rhode Island Co. 2494
Heike V. U. S. 1398, 1530, 2281
733
TABLE OF CASES CITED
SECTION
Heinmiller v. Winston Bros. 458, 461
Heinze (State ex rel.) v. District
Court 1862
Heitmann d. Commercial Bank 2408,
2410, 2413, 2435
Helbig V. Citizens' Ins. Co. 966, 2596
». Grays' Harbor E. Co. 2220
Helling V. Schindler 283
Helm V. Anchor F. Ins. Co. 581
!). Com. 851, 923
Helms V. State 106
Helwig «. Aulabaugh 2153
Hemphill v. Hemphill 1S64, 1566, 1587
Hemstreet, re 2207
Henard v. State 398
Hendehnan ii. Kahan 1842
Hendersen, ex parte 2195
Henderson v. Coleman 18, 1078
J). Com. 987, 2277
V. Henderson 89, 2473
J). State ' 1136, 2062
Henderson M. & M. Co. v. Nichol-
son 1680
Henderson & C. G. R. Co. v. Cosby 1164
Hendricks v. St. Louis Transit Co. 785
Hendrix v. State 2060
Heneky v. Smith 282
Heningburg v. State -851
Hennessy v. Kennedy 2432
Henning v. Stevenson 609, 615, 2500
Henrietta Coal Co. v. Campbell 1808, 1951
Henry v. Brown 254, 1587, 1778
V. Henry 2520
V. Phillips 2408
V. Seattle Elec. Co. 1750
V. State 949, 1010
Henry Investment Co. v. Semonian 1681
Hensan v. Cooksey 2503
Henson v. Lehigh V. R. Co. 2509
Herman, in re 291
Herman t>. Schlesinger 2319
Herndon v. State 351
Herrell «. State 1852
Herreshoff v. Knietsch 2212
Herrick v. Holland 437, 728
Herring v. Watson 2500
Herrington v. State 1750
Hess, re 2271, 2282
Hewett V. Chapman 2351
Hews V. Equitable L. A. Soc'y 1081
Hewson ii. Cleeve 207
Heyman v. Heyman 21, 2081, 2498
Heynbrock v. Hermann 1778
SECTION
Hiatt V. McCoUey
582
Hibbard a. Baker
1938
Hicks ». Davis
1951
V. Hicks
18
■v. Jenkins
2415
V. Naomi F. M.
Co.
1063
V. State
18,
1126, 1671
Higgins V. Com.
1029,
1079, 2071
Higgs V. Minneapolis St. P. & S. S.
M. R. Co. 791
High's Ex'rs v. Pancake 1257
Higham v. Vanosdol 1730
Hight V. Klingensmith 2336
Hightower v. Henry 2442
Hildebrand ». United Artisans 18
HQdreth v. Aldrich 1302
Hiles V. State 106
Hill V. Adams Express Co., 74 N. J.
L. 759
78 N. J. L. 2415
V. Atlanta 2572
V. Clifford 1671
!). Dalton 1564, 2477, 2540
V. Glenwood 1876
V. Hall 2444, 2503
1). Maxwell 987, 1270
V. Pomelear 2088, 2235
V. State 1732
». Terr. 987, 2059
v. Winston 1725
Hill's Guardian ». Hill 1777
Hillel Lodge v. Rose 1072, 1354
Hillers v. Taylor 1730
Hillier v. Farrell 20
Hilt J). Heimberger 1347
Hilton V. Hayes 1042, 1053
Hinners v. Edgewater & F. L. R. Co. 1168
Hindley ». Manhattan R. Co. 21, 463,
1062
Hinkle v. Smith 1538
Hinson v. State 1614
Hintz «. State 832, 851, 861, 862, 1157,
1977
V. Wagner 688
Hirdes v. Ottawa Circuit Judge 617
Hirsch & S. I. & R. Co. v. Coleman
- 1036, 1404
Hiskett V. Bozarth 608
Hisler v. State 457, 791
Hitchcock v. Board of Home Mis-
sions 2472
Hite V. Keene 2558
Hix V. Gulley 772, 1871
734
TABLE OF CASES. CITED
SECTION
Hobbs V. Rowland 2437
V. State 1398
Hobson v. Moorman 1738
Hoch V. People 851, 2081, 2231, 2506,
2550
Hocking v. Windsor S. Co. 569
Hockman v. McClanahan 530
Hodd V. Tacoma 1825
Hodge V. Smith 2409
V. State 177
Hodgens v. Sullivan 2465
Hodges V. Hill 97
Hofacre v. Monticello 1111, 1951, 2450
HofFbauer v. Morgan 2500
Hofnauer v. White Co. 2509
Hogen V. Klabo 949, 1890
Hoggan V. Cahoon 1044
Hoggson & P. Mfg. Co. v. Sears 2120
Hoisting Machinery Co. v. Goeller I.
Works 702
Holbrook V. Quinlan & Co. 1064
Holden u. McGillicuddy 2536
V. Prudential Life Ins. Co. 747, 754,
2452
Holder V. State 363, 1041
Holford V. James 2450
Holland v. Southern P. Co. 208
V. WiUiams ' 1808
HoUoway v. Kansas City 688, 2389
V. State 21, 988, 2079
Hollywood V. State 774, 1447
Holman v. Boston & M. R. Co. 21
V. Clark 1779
V. Edson 21
Holmes v. CUsby 770
Holmgren v. U. S. 2056
Holt V. Guergin 1415
V. U. S. 2183, 2252, 2265, 2511
Holt's Estate 2471
Holtan V. Beck 2530
Holway v. Sanborn 2517
Holyoke v. Holyoke's Estate 1784, 2329,
2341
Holzhauer v. Sheeny 2155
Home Ins. Co. v. Continental Ins.
Co. 2464
Home Nat'l Bank v. Hill 2416
Homnyack v. Prudential Ins. Co. 2382
Hong Quon v. Chea Sam 1190
Honor Co. v. Stevedores' & L. B.
Ass'n 1382
Hoodless V. Jernigan 18, 20
Hoogewerfl v. Flack 747
SECTION
Hoogle V. Cline
2433
Hoon V. Hoon
2526
Hooper v. State
987
Hoover v. Bouffleur
2437, 2498
Hope V. Phila. & W. R. Co.
714, 720
V. Valente
2098
Hopkins, in re
2025
Hopkins v. Fachant
1354
V. State
1126
Horlick's Malted Milk Co. v. Spiegel
Co. 1856, 1862, 2319
Horres «. Chemical Co. 18
Horst V. Lewis 1698, 1976
Horstman v. Kaufman 2257
Horton v. Chadbourn 1261
V. State, .
■ 123 Ga. 785
' 84 Miss. 59
120 Tenn. 2183
V. Stone 2408
Hosch Lumber Co. v. Weeks 1371
Hotchkiss M. M- & R- Co. v. Bruner 252
Hot Springs L. & M. Co. v. R«ver-
comb 561,"l928, 1951
Houlton V. Houlton 2408
Houston & T. C. R. Co. v. Anglin 2220
Hovey'i). Tripp 2472
Howard v. Adkins 2465
V. Beldenville,L. Co. 969
V. Carter 1938
V. Com. 861, 1850, 1899, 2334
V. Creech 2016
V. lUinois Central R. Co. 1051, 1668
V. Perrin 1680
V. State, 72 Ark. 341
139 Wis. 196
V. Strode 1074, 1409, 2237
V. Terr. 784
Howatson v. Webb 2416
Howe V. Howe 289
Howell V. Mandelbaum 150
Howell's Lessee v. Tilden 1587
Howson V. State 2100
Hoxie V. Walker 293, 398
Hoyle V. Mann 1213, 1779
Hoyt V. Independent Pay. Co. 282
V. Lightbody 1490
Hronek v. People 969
Huachuca W. Co. v. Swain 1951
Hub Construction Co. v. New Eng. B.
Club 1858
Hubatka i>. Maierhoffer 1491
V. Alexander 2421
735
TABLE OF CASES CITED
SECTION
Hubbard V. Allyn 1729
V. State 2071
Hubbuck's Estate 2472, 2473
Hubenthal v. Spokane & I. R. Co. 2442
Hudgins v. State 2034
Hudkins v. Crim 1257, 2498
Hudson V. Hudson 2500, 2503
V. Williams 1062
Huebner v. Childs 1576
Huey V. State 1136, 2071
Huff V. Gulick 2066
Hufnagle v. Delaware & H. Co. 1639
Huggard v. Glucose S. R. Co. 451, 581,
^ 2509
Hughes V. Chicago St. P. M. & O. R.
Co. 1168, 1415, 1416, 1856, 2346
V. Pritchard 1273
V. State, 2 Ga. App. 2183, 2264
Miss., 38 So. 366
126 Tenn. • 451, 791, 794, 987, 1841
Hulett V. Marine S. Bank 2416
Huline V. Huling 1730
Hull V. Berkshire R. Co. 2509
V. Douglas 289
V. Larson , 2354
Humphrey ». Pope 18, 1730
V. Timken C. Co. 2406
Hundley v. State 56
Hunneman v. Phelps 1985
Hunt V. Hunt 2046
V. Phillips 2500
V. Waterloo C. F. & N. R. Co. 923
Hunt's Goods 2421
Hunt's Will 2391
Hunter v. District Court 1388
V. First National Bank 2409
V. Ithaca 258
J). State, 133 Ga. 982
Okl. Cr. App., 134 Pac. 2239, 2242
,59 Tex. Cr. 1450
Huntington v. U. S. 1732
Huntley «. Hutchinson 2516
Huntt !). McNamee 249, 250
Hunziker v. Supreme Lodge 2452
Hupfer V. National Dist. Co. 792, 1045
Hurley v. Caldwell 1738
V. Y. M. C. A. 2435
Hursey v. Hursey 2437
Hurst V. State 1789
V. Terr. 150, 2089
Husbands v. Polivick 1352, 1354, 1664
Huston J). Smith 1347
Hutcheis v. Cedar R. & M. C. R. Co. 1750
SECTION
Hutchings v. Cobble 1960
Hutchins v. Hutchins 1382
Hutchinson v. Bambas 18
V. Plant 764
V. Richmond S. G. Co. 789
Hutchinson L. Co. v. Dickerson 462
Hutson n. Hartley 2523
Hyde V. U. S. 2349
Hyland v. Southern B. T. & T. Co. 1698
Hyndman v. Stephens 282
Hyvonen v. Hector I. Co. 1764
I
Iberia Cypress Co. v. Thorgeson 2531
Ickes V. Ickes 1730
Ide i>. Boston & M. R. Co. 455, 664
Igo V. Boston Elev. R. Co. 250
lUinois Central Ins. Co. ®. Wolf 2433
lUinois Central R. Co. v. Bailey 19, 456
V. Beeler 2220
V. Hicklin 455
V. Houchins 1076, 1698
V. McManus' Adm'r 524
V. Prickett 18, 65, 461, 1974
V. Smith 1976
V. Stanley 2509
V. Swift 2509
V. Taylor ■ 716
V. Wade 18, 1036, 1037
V. Warriner 1684
Illinois I. & M. R. Co. v. Humiston
463, 1168
Illinois Match Co. v. Chicago R. I.
& P. R. Co. 2415
Illinois Steel Co. v. Jeka 1023
V. Pacyocka 2415
Imboden's Estate 923
Ince !). State 682
Indiana U. T. Co. v. Jacobs 1722
V. Maher 2509
Indianapolis St. R. Co. v. Johnson 2034
V. Schmidt 2509
V. Taylor 1755
Indianapolis & M. R. T. Co. v. Hall
16, 2389
Ingram v. Coleman 2416
1). Dailey ' 2442
V. Wish Rah Boom Co. 1943
Inklebarger v. State 2497
Inland & S. C. Co. v. Tolson 561
Inlow V. Hughes 1736, 2052, 2315
Inman v. Dudley & D. L. Co. 1127
736
TABLE OF CASES CITED
SECTION
Inman Mfg. Co. v. American Cereal
Co. 2465, 2466
Insurance Co. v. Schmidt 1073
International Coal M. Co. v. Pennsyl-
vania R. Co. 1412, 1856, 2259
International Harv. Co. v. Campbell
2148, 2426
International Mahogany Co., re 1953
Interstate Commerce Commission v.
Baird 2264, 2281
Interstate Inv. Co. v. Bailey 1195, 1196,
2408
Interm'ban C. Co. v. Hayes 2432
Iowa Cent. R. Co. v. Hampton E. L.
& P. Co. 2509
Iowa L. & T. Co. !). Schnose 2536
Iowa-Minn. Land Co. v. Conner 1943
Irvine v. Gibson 689
Isaac's Estate 1938
Isaac V. U. S. 1891
Isbell V. Anderson C. Co. 581
Isbister v. Dominion Fish Co. 2509
Iverson v. McDonnell 969
Ivey V. Bessemer C. C. Mills 1379, 2105,
• 2429
V. Cowart 1640
Ivy V. State 987, 2269
Jack V. Kansas 2258, 2281
Jackson, in re 2531
V. American T. & T. Co. 1078
v. Drake 2435
V. Hewlett 1736
V. Jackson 2408
V. Lamar 2408
«. Moore 1554
®. State, Ala., 41 So. 246
50 Tex. Cr. 833
». Tribble 783
V. Ward 2531
V. Weis & L. M. Co. 1350
Jackson L. Co. v. Cunningham 283.
Jacksonville EI. Co. v. Sloan 1081, 1951
Jacobs V. Boston El. R. Co. 1041, 2015
®. Disharoon 1960
V. Morgenthaler 1541
». State 21
v. U. S." 2276, 2282
V. Van Sickle 916, 2047
Jacobson v. Massachusetts 1700
James v. Jackson 20
737
SECTION
James s. James 1680
V. Oakland Traction Co. 7
». State 2383
Jamison v. U. S. , 286
Jangraw v. Perkins 1077
J' Anson ». Stuart 207
Japanese Immigrant Case 1354
Jaquith v. Davidson 610 '
V. Morrill 2098
Jarchow v. Grosse 1481, 1491
Jarvis v. Willson 2419
Jaynes v. People 367, 1028
Jeffries, ex parte 26
V. State 280
Jenkins v. Andover Theol. Sem. 2517
V. Commercial Nat'l Bank 1944
58 Fla. 1873
119 Ga. 860
60 Tex. Cr. 851
Wyo., 134 Pac. 748
J). Weston 233, 1938
Jenks V. Thompson 461
Jennett v. Patten 907
Jenney Electric Co. v. Branham 2570
Jennings v. Moore 2444
V. Puffer 2465
Jensen v. Deep Creek F. & L. S. Co. 2358
J). Palatine Ins. Co. 716^
Jericho v. Huntington 1784
Jespersen ». Mech 1063
Jessie ». Com. 1129
Jewell V. Excelsior P. M. Co. 1750
Johansen v. Pioneer Min. Co. 208
John Hancock Ice Co
R. Co.
Johns V. State
Johnson ». Atlantic C. L. R. Co.
«. Birket
V. Carlin
V. Caughren
V. Chicago R. I. h P. R. Co,
Perkiomen
456, 2491
1839, 2089
38, 514
1389
1247
1984
460, 571,
2552
J). Com.
102 Va. 797, 2016
111 Va. , 507, 1976
V. Detroit & M. R. R. Co. 1951
V. Johnson 1051
X. McClure 2433
V. People 19, 1079
V. Rhodes 1873
V. Schoch 1460
V. Seaboard A. L. R. Co. 949
V. Seel ' 2354
TABLE OP CASES CITED
SECTION
SECTION
Johnson v. St. Paul & W. C
Co.
1416
Jones' Estate
V. State
130 la.
233, 1639
142 Ala;
2072
166 Cal.
1738
75 Ark.
321
1111
1117
Jones Stacker Co. ». Green
2416
55 Fla.
451
1036
1977
Jordan v. Austin
288, 1203
120 Ga.
276
V. Carberry
1639
125 Ga.
18
■B. State
85 Miss.
105
50 Fla.
728, 1977
Miss., 40 So.
1614
120 Ga.
1410
89 Miss., 42 So.
835
Joseph V. Com.
1840
90 Miss.
1072
Joseph Bros: Co. v. Schonthal
21
129 Wis.
1750
Joseph Taylor Coal Co. v. Dawes
208, 367
V. Tacoma
714
1943
Judd V. N. Y. & T. S. S. Co.
1081
!). Union P. C. Co.
252
1951
Judy V. Judy
1911
V. U. S.
2264
Julian V. Kansas City S. Co.
1971
V. Walker
1141
1154
Jungworth v. Chicago M. & St. P
. R.
Johnson Lumber Co. v. Leonard
1347
2498
Co.
1750
Johnston v. Cedar Rapids & M. C. R.
Junior v. State
2158
Co.
1721
Juretich v. People
2056
V. Linder
2498
Just V. Idaho C. & I. Co.
2451
V. Marriage
913
V. Southern P. Co.
2220
K
V. Spoonheim
1777
1779
Joiner v. State
2071
2232
Kaeo V. Ozaki
1290
Joliff V. State
1620
Kaeppler v. Red R. V. N. Bank
1890
Jones V. Abbott
2421
Kah's Estate
1738
V. Allen
2591
Kahaley v. Frye
664
V. Atlantic C. L. R. Co.
1530
Kahn v. State
354, 2016
V. Bradford
1884
Kalberg v. Bon Marche
507
II. Caldwell
2390
Kaleikini v. Waterhouse
1460
V. Great Central R. Co.
2319
Kambour v. Boston & Maine R.
Co. 1807
V. Griesler
582
Kamm v. Rees
1540, 1550
V. Herrick
2053
Kamp V. Coxe Bros. & Co.
1078
V. Kansas C. F. S. 8s M
R.
Co.
2508
Kann v. Bennett
1263
V. Knauss
291
Kannow & Sons v. Farmers' C
. S.
V. Nantahala M. & T. Co.
2325
2327
Ass'n
1230
V. People
2089
Kansas C. L. R. Co. v. Gallagher
2510
V. Peterson
1871
Kansas City M. & B. R. Co. v. Butler 1719
V. Reynolds T. Co.
461
V. Matthews
1719
V. Royster Guano Co.
1164
Kansas City S. Co. d. Standard W.
V. State
Co.
2155
145 Ala.
1821
Kansas C. S. R. Co. v. Belknap
961
147 Ala.
747
V. Henrie
1976
174 Ala.
1669
V. Morris
792, 1750
Ala., 61 So.
689
Kapigian v. Der Mmassian
581
130 Ga.
1398,
1451
Kapiolani Estate v. Thurston
1644
12 Ga. App.
579
Karel v. Conlan
2252, 2257
50 Tex. Cr.
1878
Karlen v. Hadinger
616
51 Tex. Cr.
263,
2242
Kasenberg v. Hartshorn
1558
V. Stevens
70
Kastor Advertising Co. v. Coleman 664
V. Thomas
1738
Kath V. Wisconsin C. R. Co.
687, 1721
V. Warren
2416,
2496
Kaufman v. Barbour
5, 2444
V. U. S. 6, 341, 1079, 1263,
1851,
1854
V. Boismier
1013
738
TABLE OF CASES CITED
SECTION
Kaufman v. State
326
V. Tredway
334
Kaulbach's Estate
2065
Kavanaugh v. Wausau
225
Kawailani, The
2582
Kean v. Landrum
463
V. New York C. & H. R. R. Co. 2416
Kearner v. Tanner Co. 672, 682
Kearney v. Mayor 1195, 1213
Keaton v. State 2062
Keefe v. Armour Co. 1951
V. Sullivan Co. R. Co. 1566, 1567,
1568, 1956
Keely v. Moore 1292, 1671
Keena v. American Box Toe Co. 916
Keene v. Behan 2034
Keeney v. Fargo 720
Kein v. Ft. Dodge 461
Keith V. State 2354
Keliher v. U. S. 520, 1079, 2056, 2059,
2511
Kellan v. Kellan 1738
Keller & B. Co. v. Berry 2220
Kelley v. Laconia L. Dist. 1678
V. People's Nat'l F. Ins. Co. 1640
Kellogg V. Finn 2576
Kelly V. re 1138, 2071
V. Chicago R. I. & P. R. Co. 2415
V. Colhoun 2271
V. Cummens 2327
V. Kelly 1081, 1958
V. Moore 1292, 1512
V. People 63
V. State 821
Kellyville Coal Co. v. Strine 1951
Kemp V. Central of Ga. R. Co. 1750
Kemper v. State 1398
Kempf V. Koppa 228, 689
Kenneally, in re 1491
Kennedy v. Borah 1269
D. Com. 1442, 1755
D. Dickie 1347
!). McCann 2503
V. Modern Woodmen 887, 928, 2531
V. State
140 Ala. 246
71 Nebr. ' 276
Kenney v. State 1751, 1761
Kennington v. Catoe ' 68, 987, 2527
Kentucky, The 1641
Kentucky Ref. Co. v. Conner 1704
Kenway v. Kidd 1644
Kenworthy v. Slooman 1196
SECTION
Kern v. Des Moines C. R. Co. 1750
Kerr v. De Lancy 2477
Kerry Co. C. v. Liverpool S. Ass'n 2319
Kershner v. Henderson 240S
Kesselring v. Hummer 133, 1129, 1974,
1976-
Kettenbach v. U. S. 341
Kettles V. People 2486-
Kevern v. People 41, 168, 1072:
Keys V. U. S. 987
Kidwell V. Ketler 1076
V. U. S. 133, 168, 2061
Kiely v. Corbett 2416
Killam v. Wellesley & B. St. R. Co. 2509
Kimball v. Fernandez 73
V. Friend's Adm'r 1168
V. Northern El. Co. 795
Kimic V. San Jose L. G. I. R. Co.
570, 2349, 2354
Kincaide v. Cavanaugh 2200, 2219
Kindberg's Will 2502
King V. Ashley^ 2317
V. Bellamy" 2516
V. Bynum 657, 1770
». Com. 1620
V. Cox 2110
V. Gilson
191 Mo. 1081, 1671
206 Mo. 2500
V. Green 18
V. Hanson 1841, 2550
V. Phoenix Ins. Co. 2184
Kingfisher v. Altizer 252, 438, 458, 2220
Kinkade v. Howard 2165
Kinkead v. U. S. 1662
Kinnane v. Conroy 1890
Kinner v. Boyd 1963
Kinney v. Brotherhood 1671
Kipp V. Clinger 4
Kirby v. Kirby 2408
I). State 18
Kircher v. Imperial L. & I. Co. 1856
Kirk V. State 1041
Kirkland v. State 1182, 1404, 2152
Kitchell V. Hodgen 1082
Kitchen v. Smith 2066
Kitchings v. Brown 1955
Kittle, in re 2281a
Kittoe v. Willey 2408
Klein V. East River E. L. Co. 1073
Klenke v. Noonan 2505, 2536
KUne V. Kline 2046'
Klingaman v. Fish & H. Co. 1719, 1976
739
TABLE OF CASES CITED
IClueter v. Schlitz Brewing Co.
Knapp V. St. Louis T. Co.
V. State
Knauf V. Dover L. Co.
Kneedler, ex parte
SECTION
2465
1465
263
1951
2264
Knickerbocker Ice Co. v. Gardiner D.
Co. 2155
V. Gray, 165 Ind. 803
171 Ind. 461, 770, 1626
Knickerbocker Steamboat Co., re 2268
Knight V. Peabody 581
V. State
114 Ga. 1126
64 Tex. 290, 1869, 2528
Knights Templar & M. L. I. Co. ».
Crayton 1053, 1073, 1076, 1374, 1671
Knott V. Cape Fear & N. R. Co. 456
V. Peterson , 1077, 1698
Knox V. Montville 1784
V. State . 10t3, 1079
Koch V. State 987, 2356
V. Streuter 2144
Koeber v. Somers 2319
Koehler v. Abey 747, 754
V. Schilling 1194, 1195
Koepke v. Delfs 133, 987
Koester v. Northwestern P. H. Co. 2408
Kolodrianski v. American L. Co. 1404
KolofF V. Chicago M. & P. S. E. Co. 1676
Koltermann v. Chilvers 1681
Komp V. State 784, 1676
Koon V. Southern Ry. 770, 794, 1951, 2496
Kops V. Reg. 2272
Korah v. Chicago R. I. & P. R. Co. 2510
Kornegay v. Atlantic C. L. R. Co. 2509
Kornig v. Western L. Ind. Co. 2510
Koskoff V. Goldman 283
Kosturska v. Bartkiewicz 1352
Kovacs V. Mayoras 1106
Kramer v. Gardner 2433
V. Weigand 1135
Krapp V. Metrop. L. Ins. Co. 568, 1073,
1644, 1646, 2390
Krebs v. Lauser 2437
Kreens v. State 2265
Kreiling v. Northrup 21
Kroell V. State ' 396, 1976
Kroetch v. Empire M. Co. 1062, 1884
Kroger v. Cumberland F. P. Co. 2494
Krogh V. Modern Woodmen 1073, 1671
Kroll V. Close 2553
Krouse v. Detroit U. R. Co. 1405
Kruse v. Koelzer 2415
SECTION
Kuhl V. Chamberlain 1077
Kuhlman v. Wieben 1974
Kuhns V. Wisconsin I. & N. R. Co. 283
Kultz V. Jaeger 1738
Kunkel v. Minneapolis St. P. & S. S.
M. R. Co. 2510
Kurtz V. Brown 1856
Kurz V. Doerr . 2498
Lacy V. Meador 1278
Ladwig V. Heyer 1971
Lake v. Com. 62, 1669
Lake Erie & W. R. Co. v. Holland 2432
«. Huffman 1389
Lalakea «. Hilo Sugar Co. 1635, 1679
Lally V. Central V. R. Co. 714
Lamb v. Philadelphia & R. R. Co. 438
Lambeck v. Stiefel 1056
Lambert v. Hamlin 2^8
ji. La Conner T. & T. Co. 1951
L'Amie v. Wilson 1859
Lamkin v. Johnson 2494
Lam Yee v. State 2273
Lamar v. Micoux 2572
Lambert v. Armfentrout 914, 916
V. Hemler 2498
Lanasa v. State 1129, 2304
Lancaster v. Lee 2143
Lancaster & J. E. L. Co. v. Jones 2459
Lander v. Sheehan 451
Landis & Schick v. Watts 392, 682
Landon i>. Morehead 21, 1201
Landt v. McCuUough 1201, 1208, 2525
Landthrift v. State 1821
Lane v. Bailey 2215
V. Bauserman 770
V. Com. 2059
V. Watts 2141
Lang V. Lang 228, 679
*. Metzger 1081,1085
JI. U. S. 6
Langdeau v. John Hancock M. L. Ins.
Co. 2452
Langford v. State 318
Lanham v. Lanham 2336
V. Louisville & N. R. Co. 2432
Lanier v. Hebard 1490, 1573
V. State 1781
Lanning v. Gay 582, 607
Lansing v. Michigan C. R. Co. 987
Lanza v. Le Grand Quarry Co. 1415, 1669
740
TABLE OF CASES CITED
SECTION
Lapointe v. Berlin Mills Co. 1158, 1898
Lappe V. Gfeller 1736
Laprade v. Fitchburg & L. St. R. Co. 2410
Larkin v. Nassau Elec. Co. 1261
Larrance v. People 1042
Larson v. Glos 2034
V. Salt Lake City 2220
i'. State 689, 2389
V. Thoma 581
La Rue v. Kansas M. L. Ins. Co. 2573,
2574
Lasater v. State 2062
Lasher v. Colton 898
Lassas «. McCarty 1938
Lassiter v. Norfolk & C. R. Co. 2536
V. State 1821
Latham, ex p. 2536
Lathrop v. Humble 2433
Latour's Estate 2500
Latourette v. Miller 681
Lauchheimer v. Jacobs 773
Lauer v. Banning 401
Launikitas «. Wilkesbarre & W. V. T.
Co. 1003
Laurie Co. v. McCullough 458, 461, 2382,
2386
Lauth V. Chicago U. T. Co. 1719, 1721,
1974
Lavalleur v. Hahn 2406
La Vie ». Tooze 2473
Lawless v. Lawless 1081
Lawlor v. Loewe 1729
Lawn V. Prager 751
Lawrence v. Doe 1966
V. Methuen 715
V. State 1079, 2183, 2264, 2277
Lawson v. Black Diamond C. M. Co.
1859, 2218
V. Rowley 2195
V. State 390, 1938
Lea, re ' 1354
Leach v. Com. 987
V. Oregon S. L. Co. 1750
V. Rex 2245
Leadbetter v. Crow's Nest 2319
Leaptrot v. State 1938
Leary v. Webber Co. 208, 250, 1938
Leathe v. Thomas 2536
Leatherman v. State 1978
Leavitt v. Fiberloid Co. 2434, 2509
V. Shook 2132
Leckie v. Scott 2199
Lederer v. Saake 1674
SECTION
Lee V. Angus
2200
V. Com.
2071
V. Kansas C. S. R. Co.
688
V. Missouri P. R. Co.
2495
V. Salt Lake
1951
!). State
72 Ark.
111,
247, 1013
8 Ga. App.
367
45 Tex. Cr.
987
Leech v. Karthaus
2168
Leedom v. State 63, 64, 398, 2061
Leesville Mfg. Co. v. Morgan W. & I.
Works 1194, 2153
Leftridge v. U. S. 1852, 2071, 2081
Leftwich v. Early 2408
Legere v. State 1128, 2512
Lehigh Valley R. Co. v. Clark 2494
Lehmann v. Minneapolis & St. L. R. Co. 451
Leifheit v. Neylon 2103
Leistikow v. Zuelsdorf 1067, 1890
Lemke v. Hage 2498
Lemmert v. Lemmert 20
Lenahan v. Pittston C. M. Co. 969
Lenfest v. Robbins 396, 952
Lenoir v. People's Bank 1385
V. Lenoir 2046, 2067, 2245
Leon V. Kerrison 1246
Leonard v. Fleming 1085, 2520
V. Leonard • 2408
Lepley v. Anderson 2414, 2498
Le Prohon's Appeal 2329
Lerum v. Geoing 1032
Lese V. Lamprecht 2430, 2442
Leslie v. McMurty 1736
Letourneau v. Carbonneau 2415
Letts V. Letts 2056, 2060
Leucht V. Leucht 1730, 2336
Levels v. St. Louis & H. R. Co. 1639
Levendusky v. Empire R. M. Co. 2509
Leverett v. BuUard 2477
V. Tift 1651, 2141, 2146
Levi V. Levi 1539
V. State 1404
Levine v. Mitchell & S. Co. 2446
Levy V. Rust 2024
Lewis V. England 1539, 1555, 1558
V. Englewood Elev. R. Co. 714, 1640
V. Glass , 1300
V. Lewis 2252, 2452
s. Rio Grande W. R. Co. 2510
V. State 1350
Lewis, Hubbard & Co. v. Montgomery
S. Co. 2580
741
TABLE OP CASES CITED
SECTION
Lexington v. Fleharty 1750
Lexington R. Co. v. Herring 199
Lexington St. R. Co. v. Strader 1750
Leyner v. Leyner 2328
Liberty v. Haines 1063, 1067
Light V. Reed 1681
Liles V. Liles 1194
V. May 1040
Lilley J). Parkinson 1693
Lillie V. Modern Woodmen 1347
V. State 457
Limerick v. Lee 1067
Lindahl v. Supreme Court L 0. P. 2510
Lindenbaum v. N. Y. N. H. & H. R.
Co. 2034
Lindquist v. Dickson 905
Lindsay v. Allen 2281
V. Bates 928
V. State 579, 1876
Lindsey «. State, Pla., 63 So. 2270
69 Oh. 499
V. Stephens 1738
Lindsley v. Natural Carbonic Gas Co. 1354
Line v. Grand Rapids & I. R. Co. 571
V. Line 2568
Linebarger v. Linebarger 1081, 1738
Linkeman v. Knepper 614
Linton v. Moorhead 2536
V. Sutherland 1779
Lipham v. State 398
Lipphard v. Humphrey - 1740, 2421
Lipsey v. People 326, 2273
List's Ex'r V. List 1062, 2312
Little V. Liggett 2435
V. Rogers 693
V. State 177, 2012
Little Rock R. & E. Co. v. Green 2510
Little Rock V. & I. Co. v. Robinson 987
Little & H. I. Co. V. Pigg 1073
Liu Hop Pong v. U. S. 1354
Livinghouse v. State 2061
Livingston v. State 364
Livingstone Mfg. Co. v. Rizzi 1078
Lockard ». Van Alstyne 367
Locke V. Lyon M. Co. 2556
Lockhart v. State 1445, 1477
Lockridge v. Brown 18
Logan V. Freerks 763
V. Lee 2573
Logan's Heirs v. Ward 2522
Logia Suprema v. Aguirre 1081
Logsden v. Stern 616
Lomax v. Lomax 2477
SECTION
Lombard v. Chaplin 2113, 2115
London Guarantee & A. Co. American
Cereal Co. 1388
Long V. Athol 461
V. Garey Inv. Co. 2391
ji. Hawken 2195
V. Powell 1676
V. State
72 Ark. 246, 988
10 Tex. App. 1751
Long Bell L. Co. v. Nyman 95
Longan v. Weltmer 18
Longer v. Beakley 1736
Longmire v. State 396
Loofbourow v. Utah L. & R. Co. 19
Loomis V. Connecticut P. Ins. Co. 451
Looney v. Saltonstall 1856, 1859
Loose V. State 667, 762, 1839, 1842
Lord V. Moore 2100
V. State 2239
Lord's Will, in re 2106
Loree's Estate 1738, 2314
Lorenz v. U. S. 1079
Loring V. Boston Elev. R. Co. 795
Lossing V. Cushman 2442
Lo Toon V. Terr. 1819, 1873
Loughead v. CoUingwood S. Co. 282
Loughlin v. Brassil 283
Louisiana R. & N. Co. v. Morere 714
Louisville v. Caron 1164
Louisville B. & I. Co. ji. Hart 461
Louisville & N. R. Co. v. Bowen 283
V. Brown 792
V. Daniel 1530
V. Port 455, 456
V. Guttman 455
V. Jacobs 1587
V. Mayes 935
V. MoUoy's Adm'x 1750
V. Morton 283
V. Payne 1808
V. Perkins 1966
V. Quinn 15, 1007
V. Scalf 923, 1719, 1722
V. Short 456
V. Simpson 2200
1). Smith 1719, 1722
V. U. S. 1557
V. Varner 284, 1133
V. Willbanks 2433
V. Wilson 1164
Loveland, re 2463
Loverin & B. Co. v. Bumgarner 289^ 2153
742
TABLE OF CASES CITED
SECTION
Low ». Hanson
2572
Low Chin Woon ». U. S.
2256
Low Foon Yin v. U. S.
2256
Lowdon V. U. S.
290
Lowe V. Bliss
2132
B. State
1328
Lowuian v. State
276, 987, 988
Lowrie v. Taylor
762
Lowry Nat'l Bank v. Fickett
1074, 2159
Lowsit V. Seattle L. Co.
969
Loxley v. Studebacker
2442
Lucas V. Com.
1434
V. McDonald
1938
Luce V. Parsons
1576
Luck V. State
1842
Luckenbach v. Sciple
18, 770
Luckey v. Western U. Tel. Co. 1730
Lueders v. U. S. 341
Luick V. Arends 1730, 1890, 2340, 2341
Luman v. Golden A. C. M. Co. 1078, 1951
Lumm ji. Howells 1086
Lumpkin v. State 1072
Lunde v. Cudahy Packing Co. 2509
V. Detroit United R. Co. 987
Lundstrom v. State 2071
Luscombe v. Peterson 2408
Luttrell V. Whitehead 1502
Lyke v. Lehigh V. R. Co. 1129
Lyles V. Brannon C. Co. 1502
V. State
130 Ga. 1732, 1750
48 Tex. Cr. 1435
Lyman v. State 2575
Lynch v. Ninemire P. Co. 2509
V. Troxell 718
Lynch's Adm'r v. Murray 1387
Lynes v. Northern Pac. R. Co. 1698, 2556
Lynn v. Hockaday 2336
Lyon V. Grand Rapids 252, 770, 1976
V. United Moderns 2434, 2496
Lyons v. Chicago City R. Co. 1976
Lytton Mfg. Co. ». House Lumber Co. 2435
Mac, Mc
McAdams v. McAdams
2415,
2503
Macafee v. Higgins
1958
McAlister v. Henkel
2200, 2259,
2270
V. State
987
McAUin V. McAUin
1873
McAllister v. Rowland
233,
1671
McAnany v. Henrici
1976
McBrayer v. Walker
1297,
2116
SECTION
McBride v. McBride 1938
V. Georgia R. & E. Co. 1062, 1133, 1750
McCabe v. State 1384
McCaffrey v. Burkhardt 2445
McCall V. Toxaway T. Co. 2416
McCalman v. State 166
McCandless v. State 2079
McCann v. People 2100
McCants v. Thompson 1560
McCarthy v. Meany 748
V. Peach 669
McCarty v. Kepreta 1075, 2590
McClary V. State 1181
McCleary v. State 499, 851
McCleery v. Lewis 2143
McClellan's Estate
20 S. D. 797, 2008
21 S. D. 1129
McClelland ». Bullis 21,2498
McClintock v. Frohlich 20
McClung V. McPherson 2132, 2520
McClure v. State Banking Co. 64
McClurg V. Brenton 177
McCoUum V. Southern P. R. Co. 1213, 2432
V. State - 667
McConnell v. Brown 1911
V. Keir 1417, 2500
V. State 2062
V. Wildes 1081
McConnell's Ex'r v. McConnell 1081
McCook V. McAdams 21, 1943
McCord V. McCord 2340
V. Masonic Casualty Co. 1056
McCord-Collins M. Co. v. Dodson 1213
McCormick v. Detroit G. H. & M. R.
Co. 1721, 1974
V. State 153
McCorquodale v. State 1033
McCoy V. Jordan 233, 1938, 2355
V. U. S. 987, 2277, 2356
McCraney v. Glos 1652, 1684
McCrary v. Pritchard 1944, 2439
McCray v. State 967, 1339, 2196
McCready v. Crane 21
McCrear v. State 2079
McCreary v. Coggeshall 2017, 2145
McCreary v. Com. 988
McCrohan v. Davison 1963
McCue V. Com. 905
McCulkrs V. Jacksonville O. M. Co. 1104
McCuUock V. Needham 2510
M'CuUough V. Munn 797
V. R. Co. 1976
743
TABLE OF CASES CITED
SECTION
McCullough Bros. v. Sawtell
1076
McCune v. GoodwilUe
586
McDaniel v. State
106
McDaniels v. State
2059
McDermott v. Mahoney
1063
McDermott's Estate
995
McDevitt V. Deacon
1681
MacDonald v. Metropolitan St.
R.
Co.
1700
V. Bayha
1778
McDonald v. Brown
1389
V. City El. R. Co.
1975
V. Duluth
1951
V. McDonald
1651
33 Can. Sup.
2065
38 N. Sc.
1651
V. Erbes
1213
V. N. Y. C. & H. R. R. Co.
664, 1018
v. Pless
2354
V. Rhode Island Co.
682
V. Smith 289, 290, 1389, 1893
11. State
165 Ala. 141, 177
56 Fla. 2513
McDonough v. Boston EI. R. Co. 1078, 2053
McDowell V. McDowell's Est. 610, 1466
v. Edward's Adm'r 2503
McDuffee v. State 290, 2511, 2512
McDuffee's Adm'x v. Boston & M. R.
Co. 290
McDuffie V. State 951
McEh-oy V. State 140
McElwain v. Com. 2273
McEwen v. State 1442, 2512
McFarland v. People 2061
MacFeat v. Phila. W. & B. R. Co. 18, 792
McGarry v. Healey 2026
McGary v. McDennott 2047, 2433
McGeary v. Brown 1859
McGeehan v. Hughes 461
McGehee v. State 142, 821
McGivem v. Steele 1387, 1576, 2098
McGorray v. Sutter 2271
McGowan v. liavenport 1077
McGregor v. Montgomery 1213
McGuire v. Blount 2139, 2145
V. Clark 2408
V. Norfolk & W. R. Co. 914
McHenry v. Parkersburg 1640
M'Hugh V. M'Hugh 2463, 2477
McHugh V. St. Louis T. Co. 1719
V. Terr. 248, 396
Mclnerney v. U. S. 1633, 1641, 1672, 2529
SECTION '
Mcintosh V. Wales 258
Mclntiufi V. Insurance Co. 1387
M'Intyre v. Modern Woodmen 681, 1978
Mclntyre v. Mclntyre 2408
V. People 2195
McKane v. Howard 64, 77, 207
McKarren v. Boston & N. St. R. Co. 794
McKay t. Lasher 797
McKee v. Higbee 2097, 2498
McKenna v. McMichael 2048
McKenna's Estate 689, 1738, 2500
McKenzie v. Banks 1003, 2385
V. Beaumont 1676
McKergow v. Comstock 1856
McKevitt V. People 276, 987, 1270
McKinney v. Carmack 111, 1329
McKinnon v. Lively ' 987
». CoUins 7, 1028, 1117, 1646, 2534
McKinstry v. Tuscaloosa 492
McKnight v. Detroit & M. R. R. Co. 2194
J). Newell 1549
V. Oregon S. L. R. Co. 2536
V. Parsons 2420
V. U. S. 1779, 2272
McLain V. Allen 1490
McLaughlin v. Joy 1417
McLean Co. Coal Co. ■!;. Bloomington 2465
McLeod V. Atlantic C. L. R. Co. 2509
MacMahon v. Railway P. Ass. Co. 1859
McMahon v. Chicago City R. Co. 949, 1778
V. Rowley 1705
McManus v. Nichols-Chisholm L.
Co. ' 1048
McMichael v. State 2243
McMillen V. Ferrum M. Co. 1163
McNamara v. Boston Elev. R. Co. 2416, 2509
McNaughton v. Smith 19
McNeil «. Cullen 2444
McNeill V. Stitt 2498
McNish V. State 851
McPhelemy v. McPhelemy 1244
McQuiggan v. Ladd 198, 248
McRae v. Erickson 2382, 2383
McReynolds v. Smith 228
McRorie v. Monroe 1330, 1976
McSein v. State 2086
McSwane v. Foreman 2204
McWilliams v. Dickson Co. 1856
M
Mack V. Sharp
V. State
Mackel v. Bartlett
2303
660
2311
744
TABLE OF CASES CITED
SECTION
Mackey v. Irwin 1061
Mackin v. People 2270
Macon v. Humphries 20, 2219
Macon R. & L. Co. v. Mason 290, 569, 2337
Maddox v. State 1732, 2595
Madison v. Guilford 1784
Madre v. Gaskins 2503
Madsen v. Utah L. & R. Co. 2383
Madson v. Rutter 17
Madunkeunk D. & I. Co. v. Allen C.
Co. 1530
Mageau v. Great Northern R. Co. 2391
Magee v. State 2265
Magness v. Modern Woodmen 2531
MagnoUa M. Co. v. Gale 18
Maguire v. People 1013
V. Seaboard A. L. R. Co. 2509
Mahan ■!). Daggett 461
Mahar v. Montello G. Co. 916
Mahon v. Rankin 1058, 2115
V. State 2016
Mahoney v. Hartford Inv. Co. 1555, 1558
V. Salsbury 2410
Maier v. Brock 2506
Main v. Radney 18, 2415
Maitland v. Zanga 1909
Makainai v. Goo Wan Hoy 2184
Makekau v. Kane 1481, 1778
Maki V. State 852
Malcom Sav. Bank v. Cronin 5, 803
Malley Co. v: Button 321
Malone v. Alderdice 1352
J). La Croix 2580
V. State 247, 1079
V. Stephenson 987
Maloney v. King 1164, 1873
V. Winston Bros. Co. 2536
Maloy V. State 923, 1985
Mance v. Hossington 377
Manchester Assur. Co. v. Oregon R. &
N. Co. 749, 1530, 1532
Manda v. Orange 463
Mandel v. Swan 1223
Mandery v. Mississippi & R. R. B. Co. 1943
Mandler v. Starks 2442
Manhattan L. Ins. Co. v. Albro 6, 2452
Mankato Mills Co. v. Willard 21
Mann v. Balfour 582, 1736
V. Com. 2059
Manning v. Mercantile S. Co. 2259, 2264,
2271
V. School District 736, 754
V. State 1186
Mansbach's Estate
Mansfield v. Johnson
Maples V. Haggard
Machant's Estate
Marcus v. Gimbel Bros.
Marcy v. Parker
SECTION
2384, 2391,2500
1275, 1681
1665
2534
1078
2349
Marinette v. Goodrich T. Co. 664
Marinoni v. State 18
Mark, re 2271, 2276
Markey v. State 18, 1352, 1676
Marks v. Hardy's Adm'r 21, 1624, 1706
V. Harriet Cotton Mills 1961
V. Madsen 614, 2340
V. Marks 2463
Marley v. State 150
Marmer v. State 2060
Marron v. Great Northern R. Co. 747
Marsh v. Sanders 1858
Marshall v. Marshall, 252 111. 1698
71 Kan. 17, 2334
V. Terr. 205
V. U. S. 341
V. Wabash R. Co. 1974
Martin v. Beatty 232, 689
V. Boston & N. St. R. Co. 561, 2509
V. Brand 2529
V. Com. 1442
V. Corscaddon 258
V. Derenbecker 612
V. Des Moines E. L. Co. 1976
V. Hoffman 1263
' V. Knight 2016
V. Martin 1681
V. Moore 792
V. Ragsdale 1388
V. State, 144 Ala. 247
2 Ala. App. 203
V. Terr. 524
Martorana, in re 2066
Marx V. Ontario B. H. & A. Co. 1976
Maryland Casualty Co. v. Seattle El.
Co. 2354
Maryland El. R. Co. v. Beasley 252, 792
Maryland Steel Co. v. Engleman 1127
Marzulli v. Metropolitan L. Ins. Co.
2034
Mash V. Darley 1347
V. People 15, 18, 2243
Mason v. State 1781, 2081, 2513
Masourides v. State 905
Masee v. Williams 78, 406
Massee-Felton L. Co. v. Sirmans 1460, 1464
Masseth's Estate 2421
745
TABLE OF CASES CITEU
SECTION
Massey-Harris Co. v. Horning ,1058
V. De Laval S. Co. 6185
Massuco V. Tomassi 690, 2088
Masterson v. St. Louis Transit Co. 2273
Maston V. State 56, 59, 592
Math V. Chicago City R. Co. 782, 785
Matheson u. Matheson 2408
V. U. S. 561, 2501
Mathie v. Hancock 1854
Mathison.!). State 934
Matko V. Daley 1456, 1530
Matterhom, The 2536
Matthews v. Farrell 18, 1062
Matthews & Son v. Richards 1249
Mattingly v. Shortell 64
Mattison v. Mattison 763
Mattson v. Minn. & N. W. R. Co. 1182
Mause v. Hossington 377
Maves v. Grand Trunk P. R. Co. 778
Mawelo v. Hamm- Young Co. 1750
Maxey v. U. S. 6, 520
Maxson v. Case Threshing M. Co. 1951
Maxwell v. State 835
May V. Com. 218
V. May 488, 2067
V. Northern P. R. Co. 2220, 2389
Mayberry v. Beck 2465
Mayfield Lumber Co. v. Lewis' Adm'r 201,
1984
Mayhew ». Eugene 2572
Maynard v. Oregon R. & N. Co. 792
V. People 133
Mayo V. Hughes 2123
Mayor of Baltimore v. Hurlock 463, 655
Mayrand»». Dussault 2503
Mays V. New Amsterdam C. Co. 2390
V. State 1476
Mead v. Presbytesian Church 1302, 1512
Means v. Carolina C. R. Co. 2496
V. State 2056
Mease v. United T. Co. 18
Medical College Laboratory v. N. Y.
University 2433
Medley v. German A. Ins. Co. 2416
Meehan v. Great Northern R. Co. 1976
V. Holyoke St. R. Co. 1951
V. State 987, 2497
Meeker v. Fairfield 252, 1951
V. Post p. & p. Co. 74
Meekins v. Norfolk & S. R. Co. 18
Meier v. Buchter 229, 1081
V. Paulus 1416, 1856
Meily v. St. Louis & S. F. R. Co. 1951
SECTION
Meisner v. Meisner 2442
Mellor V. Walmesley 1524, 1563, 1665
Melton V. State 63, 1157
Menasha W. W. Co. v. Harmon 1212, 1234
Mendel v. Boyd 1230
Mendenhall (State ex rel.) v. District
Court 1862
V. Ulrich 2409
Menefee v. State 580
Meno V. State 133, 390, 2060
Mercantile Guaranty Co. v. Hilton 2558
Mercer v. Denne 1524, 1563, 1584, 1588,
1591, 1634, 1665, 2375
Mercer Co. v. Wolfif 1168
Merchant v. Com. 507
Merchants' Exch. Co. v. Sanders 95
Merchants' L. & T. Co. ®. Egan 2104, 2113
Merchants' S. & G. Co. v. Board of
Trade 1398, 2252
Merchants' & F. State Bank ». Dawdy 18
Merck V. Merck 529, 1302, 2420
Merrell, ex p. 2260
V. Dudley 1732
Merriam Co. v. Syndicate Pub. Co. 1699
Merrill v. Leisenring 398, 1416, 1974
Merriman v. Schmitt 2437
Merritt v. Copper Crown Co. 1271, 1858,
2536
V. Dewey 2525
Merriweather v. Com. 1072
Messel V. State 2071, 2072, 2081
Messenger v. Messenger 1705
Metropolitan Life Ins. Co. v. O'Grady 2336
V. Wagner 1976
Metropolitan R. Co. v. Blick 571
Metropolitan Stock Exchange v. Lyn-
donville N. Bank 2573
Matte & K. D. Co. v. Lowrey 1404
Metteer v. Smith 2572
Metz V. Willitts 18
Metzger v. Royal Neighbors 2341
Metzradt v. Modem Brotherhood 1671
Meurer's Will 1302
Mexborough, Earl of, ». Whitwood
U. D. Council 2256, 2268, 2281
Meyer v. Home Ins. Co. 2375
V. Foster 1330
ji. Supreme Lodge 2382, 2388
Meyers v. Highland B. G. M. Co. 437,
1951
Michael ji. Matson 2374
Michaels v. People 821
Michalowicz v. Michalowicz 2067, 2069
746
TABLE OF CASES CITED
SECTION
Michell V. Low
2048, 2106
Middleworth v. Ordway
2471
Midland V. R. Co. v. Adkins
719
V. Hamilton
770
V. Le Moyne
908
Mier u. Phillips F. Co. 347
1164, 1168
Miera v. Terr. 397
1976, 1977
Miles V. Armour
2218
V. Cames
1884
Miller v. Carr
2502
to. Com'rs
2256
V. Gillispie
1388
V. Hamilton B. S. Co.
1974
«. John
1079
V. Leib
682, 2155
V. Luckey
1943
V. Mandel
2498
V. Mintum
795
V. MuUan
252, 438
V. Northern P. R. Co.
1633
V. Pearce
655, 944
V. People
216 111. 235, 933,
1051, 1330,
2115, 2272
229 111.
56, 2513
V. Shumway
254
V. Sovereign Camp
2531
V. Spring Garden Ins. Co.
2465
V. Springfield W. Co.
1890
V. State
146 Ala.
2276
94 Ark.
1976, 1978
165 Ind.
526, 1476
174 Ind.
106, 1022
78 Neb.
2239
9 Okl. Cr. 255
390
46 Tex. Cr.
523
Tex. Cr., 91 S. W.
852
139 Wis.
1012, 1079
V. Stebbins
616
V. Steele
6
V. Terr.
9 Ariz.
177
149 Fed.
987
V. U. S.
1066
Miller's Estate
31 Utah
1081
36 Utah
1974
Miller's Will
1736
Millner v. State
1404
Milner v. State
124 Ga.
855
7 Ga. App.
2071
SECTION
Mills V. Biscoe L. Co. 1859
V. Flynn 74
' V. State 2273, 2511
Milwaukee G. E. Co. v. Gordon 20
Minden v. Vedene 1158
Minihan v: Boston Elev. R. Co. 278, 2509
Minnesota Deb. Co. v. Johnson 1246, 1256
Minor v. State 2272
Mise V. Com. 1164
Misenheimer v. State 2071
Misner v. Strong - 1062
Mississippi Glass Co. v. Franzen 907
Mississippi L. & C. Co. v. Kelly 1290, 2016
Missouri K. & T. R. Co. v. Davis 1530
V. McGlamory 1350
V. Simons 1350
Missouri S. L. Ins. Co. ». Lovelace 1684
Missouri Pae. R. Co. v. Castle 17, 2383,
2552
Missouri & N. A., R. Co. v. Daniels 682,
2390
Mitau V. Roddan 2465
Mitchell V. Altus State Bank 2409
V. Leech 1700
V. State
140 Ala. 354
148 Ala. 987, 1985
82 Ark. 1450
7 Okl. Cr. 21
9 Okl. Cr. 1620
Mitchell & Brady v. Mitchel's Adm'r 617
Mithen v. Jeffery 201, 282, 1911
Mitsunaga v. People 840, 1021
Mittelstadt v. Modern Woodmen 2510
Mittlesteadt v. Johnson 2498
Mixon V. State 1450
Mobile J. & K. C. R. Co. v. Hawkins 1254,
1960
V. Kea 2509
Mobile & O. R. Co. v. Vallowe 252, 458
Mobley v. Lyon 1034
Modem Woodmen v. Gerdom 2531
Moering v. Falk Co. 1616
Moilatt V. Hardin 2312
Moffit V. Canadian Pac. R. Co. 1456
V. Connecticut Co. 93, 792
Mohawk Overall Co., in re 2200
Molyneux v. Willcockson 2239
Monaghan v. State ' 2511
Monarch Mfg. Co. v. Omaha 1530, 1639
Monongahela R. C. C. & C. Co. v.
Schinnerer 2573
Monroe Cattle Co. v. Becker 2047
747
TABLE OF CASES CITED
SECTION
Montgomery v. Seaboard A. L. R. Co. 1680
Montgomery St. R. Co. v. Shanks 1719, 1977
Montreal St. R. Co. v. Feigleman 2319
Moon V. Pere Marquette R. Co. 283
Moore v. Adams , 2498
V. Dozier 657, 691, 1984
V. Fryman 1959
V. Pywell 2573
V. R. Co. 1160, 1168
■a. State, 130 Ga. 770, 1207
96 Tenn. 1819
Tex. Cr., 144 S. W. 987
Moore Lime Co. v. Johnston's Adm'r 2509
Moorhead v. Arnold 1151, 1168, 1351
V. Kaulbach 2065
Moran v. O'Regan 1971
V. State 1976
Moran B. Co. v. Pacific C. C. Co. 2430
Mordecai v. Canty' 1302
More V. More 1512
Morehead's Trustee v. Anderson 1944, 2570
Morey's Estate 2494, 2503
SECTION
2062
716
907
1704
457
1086
Morgan v. Lehigh V. C. Co. 20
V. Lexington H. Co. ' 74
V. Morgan 2408
. V. State
120 Ga. 2071
124 Ga. 289
V. Terr. 19
V. Thompson 2444
V. U. S. 1058
Morgenroth v. Spencer 2239
Morrell v. Preiskel 714
Morris v. Davies 166
V. Minneapolis St. P. & S. S. M.
R. Co. 2491
J). Pratt 2054
V. State
144 Ala. 933, 1005
146 Ala. 396
6 Okl. Cr. 1153, 1450
9 Okl. Cr. 398
I). Terr. 247, 794
V. U. S. 762
Morrison v. Hazzard 2465
V. Holder 1567
Morrow v. National Mas. Ace. Ass'n 1922
Morse v. Com. 331
Mortgage T. Co. v. Elliott 1195
Moseley v. Johnson 1704
Moser, re 2259, 2271
Moss V. Hunt 1351
V. State 716, 2265
748
Mott V. State
Motton V. Smith
Moultrie Repair Co. v. Hill
Mount Vernon B. Co. v. Teschner
Mountford v. Cunard S. S. Co.
Mower v. McCarthy
Mower-Harwood C. & D. S. Co. v.
Hill 2415
Moy Suey v. U. S. 1354
Moyers v. Fogarty 2311
Moynahan v. Perkins 2593
Maynihan v. Holyoke 461
Mueller v. Batcheler 2297
V. Cook 2433
V. Pew 1738
Mugge V. Jackson 2593
Mulhall V. Fallon 1576
Mulkey v. State 1354
Mullen V. U. S. ' 1398
MuUin V. Boston Elev. R. Co. 461
MuUins V. Com.
Ky., 79 S. W. 987
113 Va. 389, 851, 1726, 2550
V. Lyles 1081
V. Shrewsbury 1058
Mulroy v. Jacobson 2120
Multnomah L. & B. Co. v. Weston
B. & B. Co. 2594
Muncy, ex parte 2280
Mundy V. Jacques 2110
Muiin, ex p. 2252
Munro v. Henderson 2421
Munroe v. Hartford St. R. Co. 21, 191, 1066
Munster v. Ashworth 1371, 1378
Murchison v. Green 2506
Murdock v. Adamson 1053, 1461
V. Gould 2465
Murmutt v. State 1066
Murphy V. Atlanta & C. A. L. R. Co. 261
V. Black 2432
V. Board 1750, 2381
V. Cady 1680, 2143
V. Chicago M. & S. P. R. Co. 1168
V. Chicago, R. I. & P. R. Co. 1350
V. Com. 157, 1967
V. Dafoe 1778
V. Murphy 694, 695, 697, 2004
V. People 1644
V. Southern Pac. R. Co. 2220
v. State
122 Ga. 2086, 2231
Tex. Cr., 143 S. W. 2062
124 Wis. 2056, 2281, 2363
TABLE OF CASES CITED
SECTION
Murray v. Dickens 745, 751
V. Moore 341
V. Supreme Hive 1644, 1671
Musgrave v. Anglin 1651, 1681
Muskeget Island Club v. Nantucket 561,
714
Muskogee Electric T. Co. v. Mclntire 2509
Musselman G. Co. v. Casler 1062
Mutual Industrial I. Co. v. Perkins 288
Mutual Life Ins. Co. v. Griesa 1862, 2194,
2221
V. Owen 2381
Myer's Will 232, 1081, 1938, 2384, 2386
Myers v. Manlove 18
V. Myers 1081
Myhra v. Chicago M. & P. S. R. Co. 688
N
Naas V. Welter 19
Nagel V. St. Louis T. Co. 1034
Nagle V. Boston & N. St. R. Co. 1576
V. Schnadt 698
V. U. S. 2572
Najour, in re 1699
Napa S. Hospital v. Dasso 2529
Napier v. Elliott 1777
Napier v. Little 791, 793
Nash «. Layton . 1856
V. State
73 Ark. 2364
61 Tex. Cr. 2062
Nashville C. & St. L. R. Co. v. Brun-
dige ' 1958
Nashville I. R. Co. v. Barnum 987
Nashville & C. R. Co. v. Tyne 455
National Biscuit Co. v. Nolan 21
V. Wilson 2509
National Building Ass'n v. Quinn 95, 1078
National Cereal Co. v. Alexander 1129
National Citizens' Bank v. Thro 17
National Fire Ins. Co. v. Hanberg 1960
Neal V. State 1117
Neale v. American E. V. Co. 2434
Neathery v. People . Ill
Nebraska Bridge S. & L. Co. jj. Jeffrey 2509
Neece v. Neece 291
Needham v. Halverson 716
Neeley v. State 1751
Neely v. Western Allegheny R. Co. 463
Neiberger «. McCuUough 1350
Neice v. Chicago & A. R. Co. 2341
Neidy v. Littlejohn 2593
SECTION
Nelms V. State
56
Nelson v. Georgia C. & N. R. Co.
1750
V. Grondahl
93
V. Nat'l Drill Mfg. Co.
1198
V. Union R. Co.
252
V. U. S. 1859, 2200, 2210
Nelson Theatre Co. v. Nelson 463, 1944
Nelson & Sons v. Nelson Line 1859
Ness V. Escanaba 792
Neubert v. Armstrong W. Co. 95, 1203
Neville v. State 821, 1958
Nevins v. Nevins 1730
New Bell J. C. Co. v. Oxendine 2410
New England M. S. Co. v. Anderson 1213
New Jersey I. & I. R. Co. v. Tutt 1651
New Mexico v. Denver & R. G. R.
Co. 2580
New Orleans & N. E. R. Co. v. Mobly
505, 507
New York C. & H. R. R. Co. v. U. S. 291
New York Life Ins. Co. v. Rankin 1062,
1808
New York, N. H. & H. R. Co. v. Hor-
gan 1276
V. Offield 2572
New York & B. F. Co. v. Moore 154
New York & L. I. B. Co. v. Smith 1350
Newby, in re 2498
Newcomb v. Burbank 1859
V. State 18, 792
Newcomb's Estate, re 2383
Newell s. Cleveland C. C. & St. L. R.
Co. 65, 2510
V. New Holstem C. Co. 2465
V. White 1302
Newman v. Com. 923, 2273
V. People 2060
Newport N. P. Co. v. Beaumeister 2510
Newport R. M. Co. v. Mason 1951
Newton v. Foot 803
Newton Centre Trust Co. v. Stuart 2020
Nichols J). New Britain 1072
V. State 2062
V. Wentz 1890, 1938, 1974
Nichols-Shepard Co. v. Ringler 702
Nichols & S. Co. V. Skedanuk 1290, 1856
Nicholson v. Eureka L. Co. 704, 2006,
2141, 2165
V. State 1976
V. Tarpey 2448
Niekey v. Leader 2578
Nickles v. Seaboard A. L. R. Co. 1062, 1976
V. State 1976
749
TABLE OF CASES CITED
SECTION
Nickolizack v. State 1808, 2277
Nielson v. Cedar Co. 1013
NUson V. Chicago B. & Q. R. Co. 2510
Nix V. Thackaberry 1911
Nixon «. Omaha & C. B. St. R. Co. 1719
V. Snellbaker 1736
V. State 1398
Noble V. Fickes 2408
Nobles V. State 398
Noelle V. Hoquiam L. & S. Co. 2389
Nolan V. Garrison 1411
V. Newton St. R. Co. 683
V. Otney 2408
Nolen V. State 200
Noonan v. Luther 64, 581
Nophsker v. Supreme Council 225, 266
Norbeck v. Davis 2235
Norcum v. Savage 1067, 1256
Nordan v. State 1387, 1725, 1750
Nordgren v. People 951, 1438, 1446,
1726
Norfolk R. & L. Co. v. Spratley 1976, 2509
Norfolk & W. R. Co. v. Bell 461
V. Briggs 456
V. Denny's Adm'r 2536
Norman v. McCarthy 2409
V. State 2239
Norman P. S. Co. v. Ford 654, 1074, 2463
Norris ». Billingsley 1233, 1651
V. Cargill 1067
V. Cudahy P. Co. 461
V. St. Louis I. M. & S. R. Co. 568
North Jersey St. R. Co. v. Purdy 2509
North Texas C. Co. v. Bostick 1821
Northeastern R. Co. v. Hastings 2463
Northern Ala. R. Co. v. Mansell 461
V. Shea 1951
Northern C. R. Co. v. State 664
Northern Pacific R. Co. v. Alderson 790
V. Dixon 2509
Northern Supply Co. v. Wangard 1951
Northwest E. I. Co. v. Campbell 2047
Northwestern Elev. Co. v. Great Nor-
thern R. Co. 1557
Northwestern M. F. Ass'n v. North-
ern P. R. Co. 2509
Northrup v. Columbian L. Co. 1082, 2143,
2470
1738, 2119, 2314, 2500
Norton v. Clark
V. Kramer
Norwich Ins. Co. v. Oregon R. Co.
Nova Scotia Steel Co. v. Bartlett
Noyes v. Boston & Maine R. Co.
437
2451
1225
199
SECTION
Noyes v. Meharry 462
V. Thorpe 1856, 2260
Nugent V. Cudahy P. Co. 2390
Nussbaumer v. State 2582
Nussear v. Arnold 1081
Nutting V. Watson 2034
Nye V. Foreman 2478
O
Oakes v. State 581, 2557
O'Barr v. U. S. 1807
Obermeyer v. Lageman C. M. Co. 2382
O'Berry v. State 1163, 1802
O'Brien v. Bonfield 1303, 1510
V. Boston Elev. R. Co. 2510
V. Cheney 2099
V. Knotts 18, 1081
V. O'Brien 2408
V. Paterson B. & M. Co. 2444
V. St. Louis Transit Co. 1414
V. U. S. 749, 1207
V. Wobum 2572
O'Brien Lumber Co. v. Wilkinson 2464
Ocala F. & M. W. v. Lester 2123
O'Callaghan v. Dellwood Park Co. 2509
V. Murphy 1390
O'Carroll v. Hastings 2462
Ochsner v. Com. 987
O'Connell v. King 1067
O'Connor v. Lighthizer 2410
V. Madison 1081
O'Connor Co. v. Gillaspy 1750
O'Day ». Meyers 916, 1890
O'Dea V. Michigan C. R. Co. 1721
Odegard v. North Wis. L. Co. 283
O'Dell V. Goff 228, 1738
V. State 770, 2272
Odom V. State 233, 569, 689
O'Donnell v. People 18, 1270
Offutt V. Doyle 2432
Ofner, in re 2467, 2474
O'Grady v. People 2060
O'Hare v. Chicago M. & N. R. Co. 463
O'Hearn v. State 1072
Ohio Copper M. Co. «. Hutchings 1383
Ohio Nat'l B'k D. Berlin 1635
O'Laughlin v. Poll 2441
Old Wayne N. L. Ass'n ». Mc-
Donough 2168
Oldstadt V. Linehan 254
Oliver v. Henderson 2474, 2477
Olmstead v. Oregon S. L. R. Co. 2487
Olmsted u. Edson 1856, 2195, 2232
750
TABLE OF CASES CITED
-^ SKCTION
Olson V. Aubolee 1884
V. Court of Honor 2391
V. Pike 2509
Omaha v. Yancey 95
Omaha St. R. Co. v. Boesen 1032, 2509
V. Larson 571
O'Mara v. Lamb 2199
O'Meara v. McDermott 1388, 1404
OmUe V. O'Toole 578
Ong Chair Co. v. Cook 1389
O'Neal V. Sovereign Woodman 2408
V. State 967
■V. Tennessee C. D. & R. Co. 1311, 2145
Onstott V. Edel 1911
Ontario & W. C. F. Co. v. Hamilton 1856
Orange v. State 63
Orange R. M. Co. v. Mcllhenny 1067
Order of U. C. Travellers v. Barnes 1770
O'Regan v. Canadian P. R. Co. 2556
V. Trench 1041
Oregon & Cal. R. Co. v. Grubissich 1066,
1074, 2130, 2522
Orendorff v. Suit 1352
Orient Ins. Co. v. Northern P. R. Co. 461
Orion K. Mills v. U. S. F. & G. Co. 2442
Ormerod v. St. George's Ironworks 1857, 1859
Ormsby v. Webb 1081
Oro W. L. & P. Co. V. Oroville 1859
Oryik'B. Casselman 2581
Osborne v. Grand Trunk R. Co. 1530
V. Ramsay 1487, 2527
Osburn v. Oregon R. & N. Co. 455, 2509
V. State 63, 1157, 1807, 1890
Osby V. Reynolds
2419, 2420
Osgood V. Skinner
2442
O'Shea v. People
784
Ossenkop v. State
1853, 2382
Ostendorf v. State
2282
Ostenson v. Severson
2437
Oswald V. Caldwell
2408
Otis Elevator Co. v. Luck
451
O'Toole V. Ohio G. F.
Ins. Co.
2285, 2339
Ott V. Murphy
74, 1725
V. Press Pub. Co.
406
Ottawa V. Green
792
Overpeck's Will
1958
Overton v. White
1067
Owen V. McDermott
1960
V. State
2071
Owens V. National Hatchet Co.
2450
V. State
120 Ga.
821
32 Nebr.
2239
SECTION
Owner v. Bee Hive Spinning Co. 1200, 1219
Oxford (Bishop of) v. Henly 1209
Oxier v. U. S. 987
Ozark v. State 1043
Pace V. Louisville & N. R. Co. 763
Pacific Export L. Co. v. North P. L.
Co. 1073
Pacific L. S. Co. v. Murray 1943
Pacific Mill Co. v. Enterprise Mill Co. 716
Packham v. Glendmeyer 341
Padgett V. State 1890 .
Page V. Geiser Mfg. Co. 1067
V. Hazleton 284, 1549, 2116
V. McClure 2577
Palatine Ins. Co. v. Northern P. R.
Co. 1350
V. Santa F6 M. Co. 354
Palmer v. Coyle 201, 251
V. Goldberg 716
V. Owen 2452
V. Schurz 1974
V. State 1141
Palmer T. Co. v. Eaves 1064
Panhandle Lumber Co. v. Rancour 2498
Pannell v. State 2062
Pape V. Wright 2165
Pa Pelekane's Title 2573
Paquette v. Prudential Ins. Co. 1770, 2452
Pardee v. Schanzlin 2165
Park V. Schneider 1406
V. State 1445, 1448
Parke & L. Co. v. S. F. Bridge Co. 1770
Parken v. Safford 18, 2047
Parker, ex p. 2195
V. Farmers' F. Ins. Co. 1073
V. Parker 2329, 2391
V. Ricks 1879
V. State
165 Ala. 1442
46 Tex. Cr. 177, 851, 1041, 1977
Parker's Adm'r v. Cumberland T. &
T. Co. 1078
Parks V. Baker 2474
V. Com. 1398, 1404
V. State
113 Md. 1042
46 Tex. Cr. 821
Parlett v. Dunn 461
Parrish v. High Point R. A. & S. R.
Co. 683
751
TABLE OF CASES CITED
SECTION
Parish v. State 18, 677, 961, 1621, 1839,
1938, 2501, 2550
Parrott v. Atlantic & N. C. R. Co. 93, 376
V. Chicago G. W. R. Co. 1943
V. State 1072, 2272
Parsons v. People 397
Partin v. Com. 2042
Partridge v. U. S. 321
Parulo V. Philadelphia & R. R. Co. 1072
Passaic Co. «. Stevenson 1350
Pastrel v. Amory 2426
Patch Mfg. Co. V. Protection Lodge 291
Pate V. State 246
Paterson v. Chicago, M. & St. P. R.
Co. 561
Patrick v. Smith 1976
Pattee v. Whitcomb 21, 1938, 1958
Patten-W. D. Co. v. Planters' M. Co. 2439
Patterson v. Com' 1434, 1442
V. Drake , 1225, 1664, 1681, 2110
V. Hochster 1746
V. First N. Bank 377
V. Ocean A. & G. Co. 1750
V. Patterson 2498
V. Stat;e
Ala. 41 So. , 396
Okl. Cr., 132 Pac. 1620, 1966
V. Wyoming Valley District
Council 2257
Patterson's Estate , 7, 2052, 2106
Patton V. Bank 18, 2008
V. Fox 1207, 1225
V. Sanborn 283, 1719
Patty V. Salem F. Co. 1075
Pauksztis v. Raeder B. L. & P. Co. 461
Paulson V. Boyd 2409
Paxton V. State 925, 1405
Payne v. Staunton 1858, 2375
V. Waterloo C. F. & N. R. Co. 571
Peak V. Taubman 1971
Peaks V. Cobb 1233
Peano v. Breiman 2573
Pearce, in re 2463
V. Fisher 1681
V. Hooper 1297
Pearsall v. Com. 861
Pearson v. Dancer 2442
V. Yoder 2307, 2309
Peasley, re 2259
Peck V. State 852
Peckham v. People 2061, 2577, 2592
Peebles v. O'Gara Coal Co. 770, 772
Peet V. Peet 5, 2475
SECTION
Pelham & H. R. Co. v. Elliott 1011, 1807
Pelican Lumber Co. v. Johnson 1530
Pelkey v. Hodgdon 282, 581
Pelletier v. O'Connell 2478
Pelton V. Spider Lake S. & L. Co. 2498
Pence v. California M. Co. 461
Pendleton v. U. S. 2270, 2272
Penland v. Ingle 2053, 2498
Penn Mut. L. I. Co. v. Norcross 2596
Pennsylvania R. Co. v. Durkee 2386
V. Naive 21
Penny v. State 507
Pensacola Elec. Co. v. Bissett 684
Pentico v. Hays 2520
People V. Adams ' 2086, 2148
V. Albers 18, 925, 1983
V. Aldorfer 1209
V. Alexander 1434
V. Ambach 2511
V. Argo 2281
V. Arnold 968, 1908
V. Auerbach 389, 451, 1163, 1164, 1802
V. Austin 2382
V. Balkwell • 2059
V. Barker 1405, 1725
V. Baskin 918, 2056, 2079
V. Becker 783
V. Bennett 2072
V. Bernstein 2484
V. Bissett 987
V. Bladek 2254
V. Blake 1878
V. Blerding 2556
T. Board of Police Com'rs 1819
1). Bolik 2497
V. Bollinger 150
V. BoUman 2382
V. Bond 1263
». Bonier 21, 56
V. Borello 833
V. Bowen
165 Mich. 231, 2338, 2341
170 Mich. 2100, 2339
V. Brown
3 Cal App. 748
142 Mich. 168, 398
72 N. Y. 2270
203 N. Y. 821, 2276
V. Browne
197 N. Y. 987
V. Buqkley
143 Cal. 866, 1330, 1398, 1405,
1635, 1669, 1890, 2056, 2094
752
TABLE OP CASES CITED
SECTION
SECTION
People V. Burke
People ». Easton
276
18 Cal. App.
988, 1154, 1908
V. Emmons
142
157 Mich.
351, 2497
v. Enright
492, 497, 932
V. Butler St. F. & I
. Co. 2258
V. Etter
398
V. CahUl
V. Evans
527, 2042
147 Mich.
2272
V. Everham
398, 1209
193 N. Y.
2100, 2270
V. Paber
664
V. Campbell
2520
V. Palletto
1438
V. Cardillo
1270
V. Parmer
2298, 2327
V. Cascone
21, 987, 1072
V. Farrell
198, 248
V. Case
2527
V. Parrington
273
V. Casey
2501
V. Feinberg
2056
V. Cassesse
1441
v. Perrara
1129
V. Chadwick
2042, 2233, 2242
V. Perrone
1880
V. Chin Non
2349, 2354
V. Piorentiao
276, 1976
V. Christian
1269
V. Pish
1398
V. Clark
V. Fleming
21
151 Cal.
689, 1398
V. Pong Chung
987
«. Cleminson
2484
V. Prankenburg
2056
V. Coffey
21, 2159, 2060
V. Freeman
2061
V. Colbath
667
V. Prey
2071
«. Collins
363
V. Pritch
1725, 2276
V. Connelly
1005
V. Furlong
841, 2265, 2382
V. Conrow
56
V. Gaffey
154
«. Cook
216, 390, 905, 1043
V. Gardt
969
V. Cotton
905, 1269
V. Garfalo
231, 851
«. Covitz
2056
V. Gibson
398
■!). Cowan
949
V. Giddings
367
V. Creeks
21, 905, 1043
V. Gillette
21
v. Crowley
218
V. Giro
1349, 2097, 2100
t>. Cummins
18, 118
V. Glass
343
V. Davey
21, 1157, 1808
V. Glover
1044
D. Davidson
V. Goldenson
1693
2 Cal. App.
1351
V. Gonzalez
1135
240111.
222, 1974
V. Goodrich
949
«. Davis
V. Goodwin
2081
97 Cal.
2089
V. Gordon
988
147 Cal.
290, 2513
V. Gould '
1067
175 Mich.
398
V. Governale
363
n. De Camp
987, 2277
V. Gray
V. De Garmo
363, 987
148 Cal.
987, 1977
■». Deluce
2513
251 111.
62, 398
V. Del Vermo
149, 791, 1442, 1746,
135 Mich.
2276
1750
V. Griffith
2385
V. Dickerson
562, 1907, 2484
V. Grill
792. 1010
V. Dolan
318, 1201, 2550
V. Grutz
354
■». Donaldson
2273
V. Hagenow
359, 1976
V. DonnoUy
1079, 1635
V. Harper
1873
V. Dowell
, 987
V. Harris
«. Droste
1398
144 Mich.
1761
«. Duffy
343
209 N. Y.
263, 397
«. Duncan
273, 987
V. Harrison 218,
398, 496, 1072, 2071
• V. Dunnigan
841, 2339
7.
V. Helm
53
1977
TABLE OF CASES CITED
SECTION
SECTION
People V. Henwood
2264
People 1). McAdoo
1819
D.Hill
V. McBride
1354
194 N. Y.
688
V. McCIure
218
195 N. Y.
1938
V. McCuUough
198 N. Y.
150, 218, 851
210111. -
1350
V. Hinksman
58, 925
81 Mich.
841
V. Hodge
359
V. McGarry
290, 1842
V. Hoffman
278, 321, 1040, 1060,
V. McGee
1761
1064, 1075
V. McGinnis
274
j)..Hogan
18
V. McMahon
390,
1671,
1807, 2272,
V. Hossler
1899, 2079, 2232
2273
V. Hotz
1451, 1452, 2100
V. Macgregor
.363,1976
V. Hurtado
263
V. Madas
1445
D. Huff
988, 1618
V. Makatch
792; 794
V. Hutchings
1476
V. Manasse
218
V. Jackson
153
V. Manoogian
689, 1938
V. Jacobs
901
V. Marrin
341
V. Jan John
821, 1810
V. Marrs
1761
V. Jennings
413, 1977
V. Maughs
791, 792
V. Johnson
7, 106, 1828
V. Maxfield
861
V. Jones
V. Mayhew
2059
160 Cal.
276
V. Michigan C. R. Co.
1672
191 N. Y.
194
V. Mills
923
V. Kaminsky
222
V. Miner
1018
V. Katz
347, 1128, 1129
V. Mingey
1960
V. Keith
2061
V. Minney
367
V. KeUy
V. Mix
928
146 Cal.
821, 987
V. Moran
1669,
2056,
2094, 2511
17 Cal. App.
1824
V. Morris
V. Kemmis
290
3 Cal. App.
398
V. Klise
363
254 111.
1157
V. KoUer
398
V. Morrison
987
V. Labra
580
V. Muhly
2130
V. Lamar
111, 246, 247, 1616
V. Murphy
2272, 2354
V. Lang
2513
V. Nail
2364
V. Lapidus
2071
V. Neumann
21, 2495
'v. Laudiero
988, 1013
V. Newberry
580
V. Leddy
1350
V. Newman
15, 21, 987
V. Le Doux
681, 1645, 2085, 2264
V. Nichols
1807
V. Lee
290
V. Nunley
928
V. Lee Nam Chin
276
V. O'Bryan
21, 852
«. Leonardo
1003
V. Oliver
2277
V. Lewandowski
1330, 1405, 1669,
V. Owen
851, 852
1810
V. Patrick
2015,
2059,
2081, 2327
V. Lewis
507, 1135
V. Peck
V. Lingley
290
139 Mich.
318
V. Loeder
1890
147 Mich.
1032
V. Loomis
351, 2100
V. Pekarz
290, 991, 1938
V. Loper
689, 833, 2337
V. Perry
988,
1808, 2497
V. Luis
830, 1327, '1332, 2100
V. Pettanza
349
V. Lukoszus
905, 1130
V. Pezutto
141
V. Lustig
782, 953
V. Pfanschmidt
177
,363,
1022, 1072
«. Lutzow
1852
V. Piner
830
754
TABLE OF CASES CITED
SECTION
SECTION"
People V. Plyler
1405
People t). Stratton
200, 398, 2060
V. Podilla
1890
V. Strauch
406, 951
V. Provost
2272
V. Storrs 1079,
1083,
1458, 2024
V. Qualey
7, 1398
V. StroUo
2155, 2266
V. Quider
2572
V. Suesser
106, 689, 2501
». Randazzio
851
, 861, 1810
V. Sullivan
V. Ranney
2071, 2072
218 111.
1983
V. Rardin
811
, 918, 2079
247 111.
2478
D. Razezicz
41
V. Swaile
2339
V. Reardon
2264
V. Swift
360
V. Remus
2495
V. Teshara
1890
V. Rice
950
V. Terrell
247
V. Richardson
166, 1154,
2062, 2063
V. Thaw
263
V. Rimieri
21, 1157
V. Thomson
1438, 1451
V. Robinson
2264
V. Tibbs 168,
1154,
1770, 1983
V. Rodawald
63, 198
, 246, 1116
V. ToUefson
1867, 2016
v. Rogers
218, 831, 851, 860, 861,
V. Tomalty
341, 961
2100
V. Turner
398
V. Rollins
1072
V. Tyler
579
J). Rose
1072, 1354
V. Tyree
932
V. Rosenheimer
2265(1
V. Upton
2235
V. Row
1021, 1022
V. Van Gaasbeck 59
928,
1614, 1983,
V. Ruef
343
1986
V. Ruiz
2056, 2094
V. Vaughn
689
V. Ryan
968
V. Viskniskki
367
V. Ryno
62
V. Walker
V. Salas
811
15 Cal. App.
1530, 2277
V. Salladay
933
198 N. Y.
2495
V. Scalamiero
18, 1136
V. Ward
2073
V. Scattura
18, 1135
V. Wardrip
2056, 2094
V. Schlessel
2113, 2120
V. Warfield
987
V. Schmitz
1890, 2576
V. Washor
1822
V. Schultz
1976
V. Weaver
318
V. Scott
841
V. Weber 21, 82]
L, 988, 1072
V, See
2081
V. Weil
321
V. Sexton
774, 898,
1828, 2364
V. Wells
968
V. Sharp
2281, 2281a
V. Weston
811,
1136, 1824
V. Siemsen
851, 2534
V. White
V. Singh
1037
142 Cal.
987
V. Smith
/
251 111.
1451
143 Cal.
196
V. Wiemers
1225,
1877, 2464
9 Cal. App
2276
V. Wilkins
821, 2073
254 111.
1876
V. Willard
2276
«. Soeder
216, 987, 1890
V. WilUams
1852
V. Solani
19
V. Wilson
V. Soto
168, 398
136 Mich.
68, 923
V. Spencer
1938
170 Mich.
963
V. Steinhauer
1852
V. Wing
166
V. Sternberg
2281, 2281a
V. Wintermute
1351
V. Stevens
1010
V. Wolf
1384, 1808
V. Steward
2220
V. Wong Loung
1072, 1974
V. Stison
168
1141, 1432
V. Wong Sang Lung
2529
V. Stouter
•
507
7.
V. Wood
55
1168
TABLE OF CASES CITED
SECTION
People V. Wright 390, 1808
V. Zito 377
People^ Bank v. Reid 321
People's Gas Co. v. Fletcher 1352
People's National Bank v. Hazard 912
V. Schopflin 2444
Peoples V. Devault 150
Pepper v. Martin 2500
Percy v. First Nat'l Bank 2498
Perdue v. State 949, 1018, 1476
Perkins v. Rice 282, 283
Perkins v. Roswell 1587
V. State 2183
V. Stevens 523
V. Sunset Tel. & T. Co. 682, 1960, 1976
V. Terr. 2273
V. Trinity R. Co. 2433
Perovich v. Perry 2576
Perrin v. U. S. 2120
Perry v. Rubber T. W. Co. 2210
Persons v- Smith 1388
Peters v. Berkemeier 2520
V. McPhadden 1704
V. Tilghman 1566, 1587
Petersburg School Dist. v. Peterson 1873
Peterson, re 1958
V. Brackey G80, 1698
V. Chaix 2465
V. Lott 1163
V. Mineral K. F. Co. 747
V. Pittsburg S. P. G. M. Co. 1056
V. State 398
Peterson's Estate 1271, 1496, 1680
Petty V. Benoit 751
Pettis V. Green Riv. A. Co. 2115
Petty «.: State 1330, 1404, 2098
Peyton v. Old Woolen M. Co. 1078
Pfister V. Milwaukee F. P. Co. 406
Phelan v. State 1072
Phelps V. Chicago R. I. & P. R. Co. 64
V. Hartwell , 1081
V. McGloan ' 1778
V. Nazworthy 158
V. Pratt 2408
V. Root 2047
Philadelphia B. & W. R. Co. d. Gatta 664
Philip Carey Mfg. Co. v. Watson . 2525
Phiiler v. Waukesha Co. 2203
PhiUips V. Chase 1576, 2272, 2314, 2322,
2329
V. Gannon 2408
V. Hazen 2184
V. Hudson 1665
SECTION
Phillips V. Laughlin
1257
V. Rhode Island Co.
2354
V. State
162 Ala.
149
121 Ga.
1842
50 Tex. Cr.
1450
Phinazee v. Bunn
770
Phoenix Assur. Co. v. Boyette
2418, 2465
Pickett V. Atlantic C. L. R. Co. 792
Pickrell v. State 2066
Piedmont Sav. Bk. v. Levy 1779
Piepke v. Philadelphia & R. Co. 507
Pier V. Speer 207, 209
Pierce, in re 2206
V. United Gas & E. Co. 969
Piercy v. Piercy 1738, 2312
V. Boston El. R. Co. 1729
V. Fisher 2520
Pierson v. Illinois C. R. Co. 2337, 2341
Pietsch V. Pietsch 2594
Pigeon, Case of 1576
Pineland Club v. Robert 1275, 2110
Finney's Will 1671
Pioso 11. Bitzer ' 2054
Piper, re 2472
Pirie, in re ' 2132, 2520
Pitman v. State 1036
Pittman v. State 318, 1871, 2201, 2276
Pitts Ji. State 105, 106, 396, 1440, 1750
Pittsburg C. C. & St. L. R. Co. v.
Austin's Adm'r * 2513
V. BanfiU 2494
V. Brown 1233
V. Chicago 1530
V. O'Conner 933, 1005, 2390
V. Haislup 1013, 1750
V. Lightheiser 1158, 1168, 1698
V. State 2556
Pittsburg F. W. & C. R. Co. v. Cal-
laghan 150
Pittsburgh R. Co. v. Thomas 250, 1616
Pittsburgh S. & N. R. Co. v. Lam-
phere 461
Place v. Grand Trunk R. Co. 283
Plant v. State 396
Planters' Mut. I. Ass'n 1>. Green 95
Platter v. Minneapolis & St. Louis R.
Co. . 2510
Plumer ii. Board 2358
Plummer x. Newdigate 150
Plunkett D. Clearwater B. & M. Co. 283
v. Hamilton 2195, 2286
D. State 200, 789, 987
756
TABLE OF CASES CITED
SECTION
Plymouth M. C. & I. Soc'y v. Traders'
P. Ass'n 1856
Pocahontas C. Co. v. Williams 1876
Poe V. State 1404
Poindexter & O. L. S. Co. v. Oregon
S. L. R. Co. 1078
Polhemus v. Prudential R. Co. 2494
Polk V. State 278
PoUitz V. Wickersham 1067
Pollock V. State 235, 457
Polsey V. Newton 2421, 2477
Poison V. Com. 2071, 2100
Pomfret v. Lancashire & Y. R. Co. 2510
Pool V. Warren Co. 1750
Poole V. Buston & M. R. Co. 2509
Pooley V. Harradine 2444
Pope V State
174 Ala. 1755, 1929, 1977
Ala., 63 So. 71 1405
Pope's Estate 2474
Porch V. State 141, 1398, 1977
Porter v. Buckley 571, 792
V. Com. 2076
V. People 944, 2060
V. State
140 Ala. 1938
173 Ind. 106, 118, 390
Portis V. Hill 2054
Portland v. Tigard 1943
». Yick . 1350,2572,2577
Portland F. M. Co. v. British & F. M.
Ins. Co. 2440
Portsmouth St. R. Co. v. Feed's Adm'r
761, 905
Posey V. State 1136
Post V. Leland 19
V. U. S. • 662
Postal Tel. C. Co. v. Likes 1076
Potlatch Lumber Co. v. Anderson 382,
437
Potter V. Barringer 2520
V. Browne 987
V. Cave 252
V. Grand Trunk W. R. Co. 1976
Potts V. State 2582
Powell V. Fowler 2527
V. Hayes 1350
V. Nevada C. & O. R. Co. 461
V. State
122 Ga. 1013
50 Tex. Cr. 2265
V. Strickland 289, 2235
Powers V. Rude 2408
SECTION
2272, 2273
56, 923, 1618
852, 2276
2500
1081, 1738
Powers V. State
75 Nebr.
117 Tenn.
V. U. S.
Powers' Estate
Powers' Executor v. Powers
Prairie du Rocher v. Schoening K. M.
Co. 1680
Pratt V. State 139»
V. Waddington 2508.
Preferred Ace. Ins. Co. v. Fielding 2510"
Prentice v. Crane 2486"
Prescott & N. W. R. Co. v. Franks 795
Preston v. Bowers 1730
Prestwood v Carlton 2416
Prewett v. Coopwood ' 1081
Prewitt V. Martin 2115
Vr State 232, 681
Pribbeno v. Chicago B. & O. R. Co. ■ 283
Price V. Clapp 367
V. State 987, 1750, 2963
Pride v. State 1976
Priddy v. Boice 1671
Prince v. Edwards 2505
V. U. S. • 2512
Pringey v. Guss 1213
Pringle v. Burroughs 232
Prior V. Davis 2498
Prisel V. Coney 2432
Pritchard v. Fowler 2500
Prize Cases 2574
Proctor V. Cable Co. 2120
V. Proctor's Adm'r 1539
Proctor Gamble Co. v. Blakeley
O. & T. Co. 2131
Produce Exchange T. Co. v. Bieber-
bach 1541, 1779
Prouskevitch s. Chicago & A. R. Co. 2220
Prout V. Bernards L. & S. Co. 1890
Provencher v. Moore 377
Providence Jewelry Co. v. Fessler 2416
Provident S. L. Assur. Soc'y v.
Whayile's Adm'r 1947
Prudential Ins. Co. v. Hummer 2434
Prudential F. Ins. Co. v. Alley 1947
Pruett V. State 2235
Prussing v. Jackson 1195, 1237, 1256
Pryor v. State 1442
Public Clearing House ■». Coyne 1354
Puckett V. Guenther 2450
Pulley V. State 18, 1136
PuUiam v. Sells 2008
Pullman Co. v. Finley 2354
757
TABLE OF CASES CITED
SECTION
SECTION
Puis V. Grand Lodge 1374,
1671,
1719, 1750
R. V. Bickley
2060
Pumorlo V. Merrill
252, 1015
V. Bird
850
Pumphrey v. State
616,
785,
1817, 1820,
V. Birtle
2529
1828
V. Blais
580, 2273
Purcell V. Armour Packing <
3o.
2409
V. Blatherwick
2059
Purdy V. State
2506
V. Bleiler
564
-Purinton v. Purinton
20
1243, 1256
V. Bloodworth
398, 2059, 2060
Purkey v. Southern C.
&T.
Co.
1984
». Bond
-Purse V. Purcell
916
Eng. 1906 K. B.
359
Puryear v. State
246, 580
21 Man.
803
Putman v. Hamilton
2027
V. Boughton
836
Putual V. State
18,
1405, 1871
V. Bowes
1760, 2061
Putnam v. Grant
1558
1). Bridgwater
2276
V. Harris
1576, 1871
V. Bridgewater
194
V. State
1620
V. Brown
2060, 2061
V. U. S.
905
V. Burdell
2273, 2356
Putnam F. & M. Co. i
. Canfield
2441, 2455
V. Burr
2061
Putnam-Hooker Co. v.
Hewins
2465
V. Butterfield
1006
Pyke V. Jamestown
682
V. Byron
2529
Pyle V. State
1(J33
V. Cargill
!). Castleton
15, 133, 987
149
Q
V. Charlesworth
320
V. Chitson
2276
QuRckenboss v. Globe & B
. T.
Ins.
V. Choney
841, 2302
Co.
•
2169
V. Clarke
1028, 1760
Quattlebaum v. State
1700
V. Cohen
2061
Queatham v. Modern Woodmen
1671
V. Cratchley
2061
Quick V. Cotman
1777
V. Crippen
1873
■Quigley v. Phelps
1351
V. Cummings
847
V. Thompson
1890
V. Curry
1818, 2042
'Quillin V. Com.
523
V. Daun
2044, 2061
'Quinalty v. Temple
68
V. Day
847
iQuinn v. Parke & L. ^
. Co
2066
V. Daye
2193
V. People
1154
V. Deakin
V. Derrick
1828
694
R., REX,
REGINA
V. Dexter
1530
V. Dibble
1018
H. V. Acaster and Leach
2245
B. Dickman
786, 2243
V. Adamson
346
V. Dimes
2059, 2060
V. Aho
1451, 2273
V. Drumfiiond
1269
V. Albutt and Screen
1683
«. Dunning
1760
11. Allen
398, 2245
V. Eberts
2059
V. Armstrong
1821, 2061
V. Edmund
1387
V. Atherton
1072
V. Ellis
194, 321, 2273
!). Atkinson
2529
V. Elliott
847
V. Baines
2192,
2210, 2371
V. Everest
2059
V. Ball
398
V. Farrell
667
«. Barrett
2059
V. Farrington
987
1). Barron
398
V. Finnessey
949, 986
v. Bellis
1645, 2529
V. Fisher
321
v. Benjamin
1129
V. Foster
1876
V. Best
847
V. Fox
2281
a. Betchel
2056, 2060
7J
V. Frank
)8
2056
TABLE OF CASES CITED
SECTION
SECTION
R. V. Gaskell
2040
R. V. Merry
1760
V. Gavin
847
V. Miller
847
V. Gay
2059
V. Moore
1828
V. Girvin
2073
V. Morgan
194
V. Godinho
829, 2097
1). Morrison
194, 1869
V. Golden
850
V. Mudge
2272
V. Graham
1760, 2061
V. Muma
' 200
V. Graves
196, 1270, 2525
V. Murray
2061
V. Gray
2100
V. Murtrie
1072
V. Grinder
2276
V. Naoum
564, 2086
V. Grout
194
V. Nicholas
1761
V. Guerin
2273
V. Noel
15, 1896
V. Guttridges
1761
i>. Norton
1072
V. Hale
1411
V. Osborne •.
1135, 1136, 1760
V. Hampton
2272
V. Paul
398
V. Hedges
1760, 2061
V. Payne
2059, 2060
V. Heuser
2060
V. Pearcy
2061
V. Hickey
1072
V. Penfold & Edwards
196
V. Higgins 284,
1042, 1781, 1873
V. Perry
1440
S.Hill
2243
V. Pitts
2061
V. Histen
847
V. Pollard and Tinsley
359
V. Hone
461
V. Powell
326
■B. Hoo Sam
847
V. Prasiloski
1349
V. Hudson
194
V. Preston
194
V. Hurd
821, 2276
V. Rappolt
194
V. Hutchins
1644, 1680
V. Ray
2086
V. Hutchinson
907, 1079
!). Reynolds
2056
B. Iman Din
2061
V. Rodley
357
». James
847
V. Rouse
194
V. Jerrett
580
V. Rowland
2276
V. Jones
V. Ryan
825, 829
3 Cr. App. 67
194
V. Savage
2086
6 C. & P. 391
196
V. Seigley
194
V. Kams
2059
V. Shellaker
398
V. Kay
847
V. Shrimpton
194
V. Kennedy
983
V. Skeen
2281, 22810
V. Kiddle
1135, 1136, 1760
V. Smith
«. Kirkham
2272
20 Cox Cr.
321
V. Knight & Thayre
847
2 Cr. App.
905
V. Lai Ping
499, 855, 1818
V. Snelgrove
1418
V. Law
396, 2024
V. Solomon
194
V. Lee Tuck
1818
V. Spuzzum
1760
V. Lillyman
1760
V. Stafford
278
V. Lucy
2059
V. Stanton
832, 836
V. Macdonnell
580
V. Steffoff
847
V. McNulty
133
1). Stewart
1406
V. Maguire
• 2273
». Stone
2061, 2100
V. Male & Cooper
847
V, Stratton
194
«. Martin
V. Stroud
1072
5 Cr. App.
2059
V. Sunfield
396, 1442
9 0nt.
2100
V. Sykes
2070
V. Mason
1976, 2059
V. Sylvester
1393
V. Matheson
196
75
■0. Tate
9
2056, 2060
TABLE OF CASES CITED
R.
SECTION
. Theadorns
2272
V. Theriault
2513
D. Thistlewood
2059
V. Thompson
1072
V. Thomson
. 359, 1726
1750
V. Todd
830, 841
V. Trapnell
2056
V. Turner
196, 702, 1206
2167
«. Unsworth
^
847
V. Wakelyn
2496
V. Walker
1442
V. Waller
2550
V. Warren
2059
V. Watson
2059
V. Watt
278
V. Westfall
194
V. Whistnatit
2061
D.White
841
V. Williams •
905
«. Wilson
8 Cr. App.
2059
4Alta.
354
V. Wong On
1873
V. Wright
194
V. Wyatt
321
». Young
855
R
Raapke & K. Co. jj. Schmoeller & M.
P. Co. 1067
Rabinowitz v. Sullivan 1062
Radcliffe v. Chavez 1538, 1552, 2065
Ragland v. State 988
Raleigh & G. R. Co. s. Pullman Co. 2438
Ralls V. Sharp's Adm'r 2450
Ralph V. State 1393
Ralton V. Sherwood L. Co. 2349
Rampton D. Dobson 2446
Ramsey v. Flowers 1681
Ranck v. Brackbill 1124
Randall v. Peerless Motor C. Co. 1576, 2355
Ranney «. Byers
2465
Rapp «. Sarpy
2507
Rash V. Allen
1350
RatlifF V. Ratliff
2496
Rausch V. Michel
2408
Rawlins v. State 106, 815, 949,
1079, 2059
Ray 11. Baker
2415
Raymond v. Com.
354
J). State
1071, 1072
Razee v. State
987
Rea V. Pittsburg & C. R. Co.
463
V. State
1012, 2575
Read v. Gould
Reagan v. Manchester St. R. Co.
71. People
■b. U. S.
Reager's Adm'r ». Chappelear
Real Estate T. Co. v. Union T. Co.
C.
SECTION
2433
376
832, 852
968
2122
1378
V. Wilmington & N
Co.
Reavely v. Harris
Reaves ». Reaves
Reek's Ex'r v. Reck
Reclamation Dist. No. 70 v.
man
Redding's Lessee v. McCubbin
Redhouse v. Graham
Redmon v. Metropolitan St.
E. R.
1911, 2312
1126, 1911, 2496
2082
2503
Sher-
2491
1587
1404
R. Co. 21,
1078, 1976, 2509
Redus V. Mihier C. & R. Co. 437
Reed s. Fleming 2438
11. McCready 2516
V. Mattapan D. & T. Co. 916
V. Pittsburg C. & W. R. Co. 714
J). Reed 2245
V. Rex Fuel Co. 2389
■K. State 1621, 1853, 1959
V. Terr. 1157
Reeder v. Huffman 1966
V. Wilber 1225
Reem's Succession 2421
Reeves s. Chicago M. & St. P. R. Co. 1951
». Martin 1232
J). Southern R. Co. 65
V. State 1443
V. Terr. 2060, 2061
Regnier v. Terr. " 1750
Reichers v. Dammeier 1404
Reid, in re 2374
Reifschneider v. Reifschneider 2505
Reilly V. State 1476
Remhardt v. Marks' Adm'r 289
Reinke v. Sanitary District 791, 1230
Reitler v. Harris 1354
Remsberg v. lola P. C. Co. 665
Renn v. State 914
Renshaw v. Dignan 1777, 1960
Republic Iron & S. Co. v. Passafume 1976
Republic Iron & S. Works ». Gregg 283
Republic of France v. Peugnet 2573
Resurrection G. M. Co. v. Fortune
G. M. Co. 1800, 2477
Reyburn v. Queen City S. B. & T.
Co. 1530, 1549
Reyes v. State 770
760
TABLE OF CASES CITEI>
SECTION
Reynolds v. Narragansett E. L. Co. 1698
Rhea v. State 660, 1447
V. Terr. 286, 2243
Rhoads' Estate 2048
Rhodes v. State
141 Ala. 18
122 Ga. 1819
Rhodus V. Heffernan 1195
Rice V. Lockett 1908
V. People 36q
V. State
49 Tex. Cr. 669
50 Tex. Cr. 621, 1037
Rich V. NafFziger 1778
Richards v. Com. 451, 1666
V. Hugh 1819
V. State 1079
V. U. S. 1263
Richardson v. Gage 961, 987
V. McMillan 1389
V. Mellish 1633, 1641
V. Nelson 2220
V. Spokane 1698
V. State
145 Ala.
103 Md.
V. Webster City
Richardson Fueling Co
Richmond v. Caruthers
V. Jones
177, 1966
987, 2088, 2239, 2246
18
Seymour 1630
2408
1956, 2515
Richmond & P. E. R. Co. v. Rubin
20,
461
Rickeman v. Williamsburg C. F. Ins.
Co. 89
Riddle v. Gibson 20
Rieck V. Griffin 233, 1680
Rietveld v. Wabash R. Co. 1976, 2510
Riggs V. Metropolitan St. R. Co. 792
Riley v. Camden T. R. Co. 714
V. Carter 1658
V. Fletcher 759, 763
V. Yost 1859
Rinker v. U. S. 696, 2026
Rio Grande S. Co. v. Catlin 1350
Rio Grande So. R. Co. v. Campbell 1407
Ripley v. Sage L. & I. Co. 1073
Ripton V. Brandon 1640
Risdon «. Yates 2100,2115
Riser v. Southern R. Co. 1976
Risler v. Ins. Co. 1568
Ritchie v. Weyman 2555, 2580
Rittenborg v. Smith 987
Ri|;tenhofer v. Cutter 64
761
SECTION
Rix V. Smith 1257
Roach V. Cox 2517
Robards v. Robajds ^ 398, 2067
Robb V. Washington & J. College 2536
Robbins v. State 1807
Roberson v. State 2501
V. Woodfork 523
Roberts v. Philadelphia 1168
V. Bidwell
V. Francis
V. Ringemann
V. State
25 Del.
123 Ga.
Robertson v. Thawick
V. Heath
V. State
Robertson's Estate
Robinson v. Baltimore & O. R. Co.
V. Consol. Gas Co.
V. Duvall
V. Gregory
1081, 1738, 1938
1210
2515
41, 1022, 1051, 1491,
1873
397, 1157, 1878, 1974
1081
1709
1398
1511
2572
2509
1081
1680
V. Old Colony St. R. Co. 20, 1021
V. Singerly P. & P. Co. 1194, 1268, 2105
V. Springfield St. R. Co. 1951
V. State
165 Ala. 396
50 Fla. 522, 1878
128 Ga. 1405
6 Ga. App. 360
71 Nebr. 118
8 Okl. Cr. 276, 1142
143 Wis. 398
V. Vasey 2120
V. Western Union T. Co. 1963
Rocap V. Bell Telephone Co. 2509
Roche V. Llewellyn I. Co. 18, 252, 282
V. Nason 2388
Rochester German Ins. Co. v. Peaslee
G. Co. 2463
Rockford v. Mower 1168, 2578
Rock Island Plow Co. v. Schoening 1378
Rockwell V. Capital T. Co. 2423
Rodgers V. State 246
Rogers v. Clark Iron Co. 93, 1267, 1347,
2105
V. Grain 1751
V. Hawken
V. Krumrei
V. Portland Lumber Co.
V. State
72 Ark.
847
1073
2509
1350
-TABLE OF CASES CITED
Roth's Succession 2008
Rothrock v. Cedar Rapids 1750, 1977
Rottner v. Buchner 1351
Roundtree v. Charleston & W. C. R.
Co.
1944
Roup V. Roup
2408
Rourke v. Holmes St. R. Co.
463
Rouse V. State
111
Rouss V. King
657
Rowe V. Brenton
1670
V. Northport St. R. Co.
451
Rowley «. Bowyer
2408
Roxbury v. Bridgewater
2506
Royal Neighbors v. Hayes
1644
Ruch V. Ruch
2433
Rucker v. State
2528
R,udolph V. State 2260,
2281,
2281a
Rulofson V. Billings 21, 1133
1461
1491,
1777
SECTION
SECTION
Rogers v. State — Continued
Rumble v. U. S.
1073
88 Miss.
2286,
2374
Runnels v. State
1108
8 Okl. Cr.
235, 247, 248
Runo J). Williams
581
Tex. Cr. 159 S. W.
2349
Ruos, in re
2317
V. Si^perior Court
2210
Ruskin v. Armn
406
V. Troop
1404
Rusling V. Rusling
1738
V. Wilson
2513
Russel V. Close's Est.
2408
Rohloff V. Aid Ass'n
1680
Russell V. Broadus C. Mills
2438
Rollings V. State
390,
1157
V. Carman
18
Rollins V. Atlantic C. R. Co.
1573
V. Sharp
2498
V. Wicker
1483
J). State
Romero v. N. I. M. & D. Co.
1209
Ala. 38 So.
792
Rooney v. Southern B. & L. Ass'n
2536
97 Ark.
1269, 1273
Root V. Cudahy P. Co.
1951,
2509
Ark. 166 S. W.
2071
V. Kansas C. S. R. Co.
1871
77 Nebr. 205
2062, 2273
Roquemore v. Vulcan I. W. Cc
.
2441
19 Wyo.
1873
Rosco V. Jefferson
1960
V. Washington S. Bank
1078
Rose V. Bouck
1738
Rust V. Oltmer
2240
V. Harllee
1168
Ruth V. State
1230
V. Indept. C. Kadisho
2451
Rutherford v. Rutherford
1676
Rosenberg v. Sheahan
■ 18
Ryan v. U. S.
347
Rosenstiel v. Pittsburg R. Co.
208
,249,
Ryder v. Ryder
2498
250
Rylander v. Laursen
461
Rosenthal v. McGraw
747
Ryle ». Manchester B. & L. Ass'n 1078
Rosenwald v. Middlebrook
2094
Ross V. Alhnond
1350
V. Double S. C. Mills
2509
s
V. Ross 1911, 2421,
2500
V. State
s. ». s.
2252
139 Ala.
20, 923, 987
Sabin v. Sabin
2046
169 Ind.
1871
Sacks V. U. S.
133
Rossenback v. Supreme Court
1040
Salas V. People
1033, 1750
Roszczyniala v. State 823,
851, 861
,862,
Salem News P. Co. v. Caliga
266
1157,
1977
Salmon v. Rathjens
655
Salo V. Duluth & I. R. Co. 738, 747, 1066,
1067
Samaha v. Mason 1779
Sample v. Chicago B. & Q. R. Co. 283
Sampson d. Hughes 1960
V. Northwestern Nat'l L. Ins.
Co. 1678
Samuel v. Ofner 2467, 2474
Samuel & Jessie Kenney P. Home v.
Kenney 7
Samuels v. State 522
Sanders v. Davis 18
V. Keller 1077
V. State 279, 1062
Sanderson v. State 21, 1079
Sandon v. Sandon 2475
Sandford, ex parte 2195
V. State 396, 1329
Sands' Case 392
762
TABLE OF CASES CITED
SECTION
Sanger v. Bacon 18, 1003, 1041, 1081
Sanitary District v. P. F. W. & C. R.
Co. 1640
San Juan Light & T. Co. v. Requena 2059
Sankey v. Cook 2004
San Rafael, The 104
Sapir V. U. S. 326
Sapp 1). State 150
Sappingfield v. King 2408
Sarasohn v. Kamaiky 2410
Sardis & D. R. Co. v. McCoy 1013
Sarraille v. Calmon 2518
Sasser v. State 389, 1871
Saucier v. N. H. Spinning Mills 451, 461
Sauls, ex. p. 2268
Saunders v. Atchison T. & S. F. R.
Co. 65, 80, 1984
!). State 111, 1157
V. Tuscumbia R. & P. Co. 1195
Saures v. Stevens Mfg. Co. 2^09
Savage v. Bowen 570, 1036
V. Bulger 582, 1869
V. Canadian Pac. R. Co. 2319
Savannah F. & W. R. Co. v. Evans 2536
Saxton V. Krumm 2503
Sawyer v. U. S. 2276
Saye «. State 59, 73
Sayre v. Sayre 209
V. Woodward 1409
Sbarbero v. Miller 1671
Scandinavian Amer. Bank v. Long 1031
Scarlotta v. Ash 1951
ScarpelU v. Washington W. P. Co. 2491
Schaab v. Schaab 2239
Schafer, Jr. & Co. v. Ely 1951
Schall V. Northland M. C. Co. 1212, 2375
Schatz, in re 2066
Schaumloeffel v. State 1852, 1854
Schick V. U. S. 1398
Scheidegger v. Terrell 1491
Schell V. Weaver 2538
Schermer v. McMahon 283, 2382
Schettler v. Fort Howard 2358
Schilling v. Curran 16, 1876
Schillinger v. Bawek 2452
Schillinger Bros. Co. v. Smith 1951
Schissler v. State 682, 688, 1873
Schlesinger v. EUinger 1859
Schley V. State 561, 570
Schlicher v. Keeler 2408
V. White 1074, 1555
Schlotterbeck v. Schwinn 2536
Schmidt V. Barclay 2498
SECTION
Schmidt V. Beiseker
714
V. Chicago City R. Co.
1719, 1890
V. Clark
2066
V. Dubuque Co.
461
V. Schmidt's Estate
2444
Schmitt V. Stoss
2466
Schmoe v. Cotton
1943
Schnase v. Goetz
1005
Schneider i>. Sulzer
608, 2442
Schnier v. People
1393
Schoepf, ex p. 1856,
2195, 2319
Schoeppel v. Daly
613
Schoette v. Drake
258, 1067
Schofield V. Thomas
1302
Scholl V. Bell
2251
i>. Killorin
2434
Scholten v. Barber
2133
Schonhardt v. Pennsylvania R. Co. 826
Schorer, ex p. 346
Schouweiler ». McCauU 20, 1302, 1531
Schrader v. State 396
Schreffler v. Chase 2334, 2337
Schriner v. Dickinson 2438
Schroeder v. Blum 105
V. Chicago & N. W. R. Co. 1951
V. Smith 2520
Schultz V. Culbertson 610, 1067, 2337, 2341
V. People 326, 968
V. State 59, 68
V. Strauss 2374
Schurz V. Schurz 2498
Schuster v. State 2056
Schutz V. State • 56, 968, 1079
V. Union R. Co. 18, 1976
Schuyler v. Stephens 2503
Schwartz v. Com. 2043
V. Winnipeg E. R. Co. 907, 2509
Schwent v. Roetter 2065
Schwoebel v. Fugina 1890
Scott V. Aultman Co. 2312
V. Chicago C. R. I. & P. R. Co. 1698
V. Crerar 87, 2024
V. Hay 1938
V. Herrell 1486, 1681
V. Homesteaders 457
V. Smith 2391
V. State
141 Ala. 2073
Miss., 39 So. 1021
V. Thrall 2525
V. Townsend 1081, 1738
Scott's Adm'r v. Scott 2506
Scovel V. Detroit 2433
763
TABLE OF CASES CITED
SECTION
Scribner d. State 2252, 2270, 2281a
Scurry v. Seattle 2105
Seaboard Air L. R. Co. v. Scar-
borough 2220
Seaborn v. Com. 852, 987
Seal, re 2477
Searles v. Insurance Co. 1958
Sears v. Duling 289
V. Howe 2120
V. Vaughan 2503
Searway v. U. S. 56, 1037
Seattle v. Northern Pacific R. Co. 2450
Seavems v. Lischinski 1168
Seawell v. Young 1778
Sebesta v. Supreme Court 1352
Sechrist v. Atkinson ' 754, 763
Seckerson v. Sinclair 18
Security Mutual L. I. Co. v. E3entsch 93
Security Trust Co. v. Robb 392, 1212
1256
See V. Wabash R. Co. 15, 283
Seely v. Manhattan L. Ins. Co. 1807
V. Wells 1239
Seevers v. Cleveland Coal Co. 1073
Segura's Succession 803
Seibel-Suessdorf C. & I. M. Co. v.
Manufacturers' R. Co. 17, 1873
Seibert v. Hatcher 1081
Selby V. Com. , 1750
Sellards v. Kirby 2523
Selleck's Will 1738
Sellers v. Farmer 1213
V. Page • 1186, 1681, 2088
V. State 794, 1021
Semet-Solway Co. v. Wilcox 568
Senn v. Greundling 1303
Senterfeit v. Shealy 1226, 2266
Serdan v. Falk Co. 249, 1164, 2591
Sever v. Minneapolis & St. L. R. Co. 1976
Sewanee C. C. & L. Co. v. Williams 2195
Sewell V. Detroit U. Ry. 2509
V. Johnson 2579
Sexton V. Sexton 2336, 2338
Seymour v. Bruske 21, 347, 951
Shacklette v. Goodall 2503
Shade's Adm'r v. Covington C. E.
R. & T. & B. Co. 1722
Shaffer v. U. S. 233, 701, 792, 861, 1854,
2265
Shailer v. Bullock 166, 987, 1141
V. Bumstead 232
Shandrew v. Chicago St. P. M.'& O.
R. Co. 18, 2509
SECTION
Shank v. Wilson
2505
Shannon v. Swanson
507, 508
Shapleigh v. Hull
530
Shapter's Estate
1302, 2314, 2391
Sharp V. Erie Co.
916
V. State
784
Sharpton v. Augusta & A. R. Co. 933, 1842
Shaughnessy v. Holt 688, 1721, 1976
Shaw, in re 2199
V. N. Y. Eley. R. Co. 463, 1387, 1493
Shawnee G. & E." Co. v. Motesen-
bocker 283, 1662
Shawnee L. & P. Co. v. Sears 2509
Shea V. Cloquet L. Co. 258
V. Sewerage & Water Board 1230
Sheehan v. Allen 2303, 2306
V. Hammond 458
V. Manchester 1351
Sheets v. Ins. Co. 20
Shehy v. Cunningham 2433
Sheibley v. Fales 1347
Shelburne and Queen's Election Case 343
Shelbyville W. & L. Co. v. McDade 1078
Sheldon v. Wright 795, 2491
Shelly V. Philadelphia & R. R. Co. 456'
Shelton v. State ', 21
Shelton's Will 1736, 1738, 2016
Shenandoah L. & A. Co. v. Clarke 2465
Shephard, re 2082, 2505
Shepherd v. Com. 363, 2336
V. Schomaker 616
Sheppard i). Austin 1770
Sheridan Coal Co. v. Hull Co. 779
Sheridan Co. v. McKinney 2165, 2498
Sherin, in re 2336
Sherlock v. Minneapolis St. P. & S. S.
M. R. Co. 792
Sherman v. Southern Pac. Co. 571, 1719
V. State 2183, 2264
Sherrill v. Louisville & N. R. Co. 454
Sherrod v. Farmers M. F. I. Ass'n. 95
Shetla V. Stewart 2520
Shields, in re 2475
Shields V. Conway 1106
V. Johnson 2496
V. Lees 2066
V. Mongolian Explor. Co. 2418
Shilling V. Varner 18
Shihkle v. McCuUough 1041
Shinn Glove Co. v. Sanders 2609
Ship Money Case 1795
Shipley v. Mercantile T. & D. Co. 2467
Shipp J). Com. 263
764
TABLE OF CASES CITED
SECTION
Shires v. State 2071
Shockley v. Tucker 221
Shoemaker v. Elmer 68X
Shores-Mueller Co. v. Lonning 2416
Short V. Frink 18
Shreve v. Crosby 2446
Shrouder v. State 759
ShuU V. Boyd 2200
Shum's Adm'x v. Rutland R. Co. 2510,
2570
Shute V. Bills 2440
Sibley v. Maxwell 2471
Siegel, Cooper & Co. v. Trcka 461, 1951
Sielbeck v. Grothman 2523
Simmons v. State 158 Ala. 1820
Ala. 61 So. 1072
Simms v. Forbes 1018, 2507
Simon v. Hamilton L. Co. 250
Simonds v. Cash 1235
Simons v. Mason City & F. D. R. Co. 463
Simpson v. Com. 580, 2059
II. First Nat'l B'k 2118
n. Foundation Co. 969
, V. Weise 2105
Simrell's Estate 2048
Sims, re 2195
V. State
139 Ala. 246, 1404, 1439, 1442,
1450, 1974, 1976
54 Fla. 18
59 Fla. 851
Sinclair v. Ruddell 258
V. State 106, 1614
Sing Tuck V. U. S. 1354
Singer Mfg. Co. v. Christian 1078
Sixby V. Chicago C. R. Co. 2578
Skajewski v. Zantarski 1352
Skeen v. State 905
SkeUie v. James 2303
Skidmore v. Johnson 1070
V. State 398
Skipper v. State 247
Slater v. Mexican Nat'l R. Co. 1953
V. Sorge 2389, 2390
V. U. S. 987, 2513
Slattery v. New York N. H. & H. R.
Co. 664
Slaughter v. Heath 1671
Slaughter Co. v. King Lumber Co. 805
Slauter v. Whitelock 1819
Sledge V. Singley 1300
Sloan V. Warrenburg 283
Slocum V. New York L. Ins. Co. 2495
SECTION
Sloss-Sheffield S. & I. Co. v. Mobley 1951
Slotofski V. Boston Elev. R. Co. 2550
Smart v. Kansas City 1976, 2382, 2389,
2390
Smartt v. State 1841, 2060
Smiley v. Padgett 1779
Smith V. Au Gres 6
V. Bloom 2440
V. Boston Elev. R. Co. 782
V. Britton 1873
V. Com.
140 Ky. 2277
148 Ky. 2060
154 Ky. 1873
V. Dotterweich 2409
J). Dow 1951
V. Fuller 2083, 2088, 2505, 2506
V. Goethe 1084
V. Hanson 1461
V. Hendrix 357, 1135
V. Hewitt-Lea L. Co, 461
V. Hockenberry 211
V. Holyoke St. R. Co. 1041
V. Hubbell 406
V. International & G. N. R. Co. 1461
V. International M. Co. 6, 1856
V. Keller 1738
V. Lehigh Valley R. Co. 792, 1005
V. Milwaukee E. R. & L. Co. 2115
V. Mine & S. S. Co. 716
V. Minneapolis St. R. Co. ' 681
V. Moore 142 N. C. 1458, 1465
149 N. C. 1406, 2503
V. Ogden & N. W. R. Co. 1951
V. Prosser 2419
V. Ryan ' 229, 1736
V. Sanitary District 463
V. Seattle 458, 461, 2591
V. Singles 406
V. Smith
22 Ont. 2477
65 Or. 1719
V. Sovereign Camp 2556
11. Stanley 1568
V. State
142 Ala. 21, 59, 235
145 Ala. 1966
161 Ala. 987
Ala., 62 So. 396
74 Ark. 987, 2277
48 Fla. 949
81 Ga. 1819
125 Ga. 835
765
TABLE OF CASES CITED
SECTION
Smith V. State — Continued
3 Ga. App. ■ 2183, 2264
4 Ga. App. 2512
165 Ind. 413, 944, 1807
102 Miss. 1117
41 Tex. 1761
48 Tex. Cr. 65 1398, 1405, 1413
48 Tex. Cr. 233 1079
60 Tex. Cr. 293 1669
V. Terr. 1781
V. Vose &rS. P. Co. 2465
Smith's Will 20
Smithers v. Lawrence 1273, 1678, 1680,
2158
Smithson v. State 2272
Smitley v. Pinch 207, 1614
Smoot D. Kansas City 2382, 2384
Smyth V. Reed 2498
Smythe's Estate v. Evans 1244
Sneed v. Marysville G. & E. Co. 661
V. Terr. 248, 293
11. Woodward 1778
Snell II. Weldon 260
V. Wilson ^- 228, 1073, 1938
Snow, ex p. 2307
V. N. Y. N. H. & H. R. Co. * 1062
Snowball's Estate 1072, 1081, 1738
Snowman v. Mason 2058, 2059
Sokel V. People 507, 1398, 1644, 1960,
2536
Solander v. People 1079
Solberg v. Robbins Lumber Co. 2570
Sonnemann v. Mertz 2498
Soper V. Tyler ' 2464
Sorensen v. Sorensen 2496
V. U. S. 836
Sorenson v. U. S. 149, 1073, 2513
Soto V. Terr. 1135, 1750, 1751
Souchek v. Karr 568
South Bend d. Turner 692
South Covington & C. St. R. Co. v.
Finan's Adm'x 1043, 1163
South Omaha v. Sutliffe 20
Southard v. Arkansas V. & W. R. Co. 2433
Southern Bank v. Nichols 1051, 1416
Southern Coal & C. Co. v. Swinney 1951
Southern Express Co. v. Owens 2536
Southern Iron & E. Co. v. Smith 676
Southern L. & S. Co. «. Verdier 2123
Southern L. & T. Co. v. Benbow 18, 747,
2098, 2099, 2496
Southern Mo. & A. R. Co. v. Woodard
1943
SECTION
Southern Pac. Co. «. Cavin 2509
V. Hetzer 249, 250, 1616, 1984
V. Wilson 803
Southern P. R. Co. v. Lipman 2579
Southern R. Co. v. ^Blanford's Adm'x 18,
199, 461, 987, 995
V. Bonner 1404, 1976
V. Brown 1750, 2088
V. Bunnell 969
v. Cunningham 1951
V. Dickens 2609
1). Ellis 1819
V. Hayes 2124
V. Mooresville C. Mills 1530
V. Morris 21, 716, 961
V. Rice's Adm'x 66
V. Simpson 283
V. State 736
J). Thompson 2509
Southern States M. L. Ins. Co. v.
Herlihy 2462
Sovereign Camp v. Welch 63, 64
Spacy V. Ritter 2408
Spahr V. Mutual L. Ins. Co. 2531
Spain V. Rakestraw 1981; 1983
Sparks v. Galena Nat'l. B'k. 1960
V. Ross 1644, 2506
V. Taylor 1392
V. Terr. 18, 21
Spearman v. Sanders 1044
V. State 2338, 2340
Speer v. Speer 233, 1033
Speiser v. Phoenix M. L. Ins. Co. 1213
Spence v. Central Accident Ins. Co. 2433
Spencer v. Com. 1810
V. Razor 2520
V. State
187 N. Y. 2496
132 Wis. 1398, 1406,«1614
Spencer's Appeal 18, 112, 1736, 1974
Sperl's Estate 2495, 2503
Spick V. State 26, 389, 390
Spiers v. Hendershott 1938
Spink V. N. Y. N. H. & H. R. Co. 1640,
2615
Spinney v. Boston Elev. R. Co. 1866
Spires v. State 460, 1160
Spohr V. Chicago IS, 463, 719, 782, 1168,
1890
Spokane v. Costello 1387
Spokane Canal Co. ». Coffman 2433
Sprague v. Atchison T. & S. F. R.
Co. 455, 456
766
TABLE OF CASES CITED
SECTION
Springfield & N. E. Traction Co. v.
Warrick - 1943
Spring Valley Coal Co. v. Chiaven-
tone 20
Springer v. Borden 463
V. State 2183
Sprinkle v. U. S. 1079, 2149, 2572
Sprouse v. Com. 177
V. Story ' 1966
Squire v. Campbell 2465
St. John V. Andrews Institute 2532
St. Joseph v. Levin 2264
St. Louis V. Bay State St. R. Co. 2509
St. Louis I. M. & S. R. Co. v. Carter 2416
V. Flinn 18
V. Inman 65
V. Magness 1640
V. Raines 1890
V. Steed 283
V. Webster 1352, 2594
V. WiUiams 1722
St. Louis M. & S. E. R. Co. v. Aubu-
chon 1907
V. Continental B. Co. 714
St. Louis S. W. R. Co. v. Kennedy 2155
V. Plumlee 283
V. White S. M. Co. 747
St. Louis & O. R. Co. V. Union T. & S.
Bank 2034
St. Louis & S. F. R. Co. v. Chaney 1719
V. Cundieff 1890
V. Gosnell 2509
V. Johnson 2536
V. Shannon 455
V. Sutton 1530
St. Mary's Home v. Dodge 2523
Stafford v. Sheppard 1351
V. Tarter 1938
Stafford's Trial 278
Stallworth v. State 396
Stamper v. Com. 1244, 2042
Stancliff V. U. S. 1029
Standard C. Mills v. Cheatham 451
Standard Scale & Supply Co. v.
Reiter 2465
Standard Mfg. Co. v. Slot 321, 2415
Standard Oil Co. v. Tierney 283
Standard Talking M. Co. v. Matthews 18
Standard Underground C. Co. v.
Att'y-Gen'l 1350
Stanley v. State 367
Standard v. Aurora E. &.C. R. Co. 2433
Stapley v. Canadian P. R. Co. 1859
SECTION
Stark V. Burke ■ 1203, 2021
Starke v. State 20, 233, 290, 1023
Starling v. State 987
Starr v. Mtna. L. Ins. Co. 1750, 2510
V. State 218, 1803
Starr B. G. Ass'n v. North L. C. Ass'n 1076
State V. Adams
138 N. C. 363
68 S. C. 396
V. Ah Chuey 2265
State J). Aker 2061, 2349
V. Albanes 928, 1434
V. Alderman 56
V. Alexander 913
V. Allen, 23 Ida. 59
113 La. 1681, 2536
34 Mont. 347, 1051
V. AUison 832, 861
V. Anderson
82 Conn. 78
252 Mo. 507, 2239
162 N. C. 2513
V. Andrews, 130 la. 1136, 1761
73 S. C. 198, 248
V. Apley 62, 133, 1760
V. Ardoin 2512
». Armour Packing Qa. 1350,2592
V. Armstrong 396
V. Arnold 987, 1871
V. Arthur
129 la. 2265
135 la. 1003
70 N. J. L. 561
V. Aspara 279, 761, 821, 2130, 2264
V. Atchley 1732
J). Atkins 105, 111
V. Austin 2501, 2531
V. Averill 108, 2100
V. Baans 204
' V. Bailey, 79 Conn. 2044
190 Mo. 20, 263, 1852
V. Baird 951
V. Baker, la.
135 N. W. 794
209 Mo. 923
43 Wash. 2270, 2364
1). Baldwin 111
V. Banusik 852, 1810, 2272, 2496
V. Barber 63, 1852
V. Bardelli 953
V. Barker, 43 Wash. 786, 2270
56 Wash. 861
V. Barkley 1136
767
TABLE OF CASES CITED
SECTION
SKCTION
State V. Barnes
State V. Bond
75 N. J. L.
1451
12 Ida. 694,
2059,
2183, 2276
47 Or.
2081
191 Mo.
2497
V. Bamett
2277
V. Booth
20, 2387
V. Barr
2264
V. Borchert
398
V. Barrett,
1
V. Bordelon
1440, 1442
117 La.
987, 2349
V. Bowen
347
240 Mo.
63
V. Bowman
1350
V. Barrick
789, 1618
V. Brache
41
V. Barrington
21, 141,
851, 1268,
V. Brady, 129 la.
2511, 2513
1852,
1890, 2081
71 N. J. L.
59,
1076, 1619
V. Barns
2018
■V. Brandenburger
2277
1!. Bartlett
968
V. Brantley
42
V. Baruth
1072
V. Branton
2021
V. Barwick
852
V. Brauneis
56, 2512
V. Bass
451
V. Briggs
321
11. Bateman
1138
V. Bringgold
1067, 1909
11. Baudoin
923
1). Brinkley
\
821, 2071
V. Bean
V. Brinte
2097, 2100
104 Mo. App
2239
V. Brodie
1350
77 Vt. 952,
969, 1128,
2059, 2115
V. Brooks, 74 Kan.
257,
1620, 2272
V. Bebb
133, 1135
202 Mo.
987
V. Beckner
IS
, 923, 2277
220 Mo.
851
V. Beebe
1079, 2100
V. Brown, Del., 85 Atl.
359
V. Beeson
143, 1725
la., 121 N. W.
398, 2060
V. Beesskove
2349
128 la.
2363
». Behan
203, 367
130 la.
21, 1079
V. Belknap
987
152 la.
1398, 1404
■V. Bellard
1873, 1890
85 Kan.
2061
V. Bennett,
118 La:*
2243
137 la.
1855, 1963
181 Mo.
682, 988, 1958
143 la.
861, 1958
188 Mo.
363, 1442
507
21 S. D.
2272
209 Mo.
«. Berberick 492, 495, 841
, 862, 2100
36 tftah
2501
V. Bessa
59
39 Utah
56
V. Biango
1451
V. Browning
1818
V. Biggs
987,
1853, 1890
V. Bruin
157
V. Biscome
1618
V. Bryant
928, 987
V. Blackburn, la..
lid N. W. 62, 200,
V. Buck
457
1719, 1976
1700,
1985, 2062
V. Buckley
2043
136 la.
168,
1618, 1700
V. Bunker
1890
V. Blackwell
63
V. Burch
1157
V. Blay
851, 852,
2071, 2497
V. Burns, 145 la.
1620
V. Blee
111, 198
27 Nev.
2012
V. Blitz
2277
V. Busse
1349
V. Blodgett
1807
V. Butler
1404, 1411
v. Blount
36S
, 523, 2034
V. Byrd
1442, 1445
V. Blydenburg
1719,
1722, 2498
V. Cahill
1350
V. Boatright
321, 1079
V. Callahan, 100 Minn
1835
V. Bobbitt
987
76 N. J. L.
290, 2272
V. Boice, 140 Ind.
1350
18 S. D.
905
114 La.
780, 1873
V. Cambron 770,
1615,
1620, 1770,
». Bonar
1442
76
i8
1852
TABLE OF CASES CITED
State !
SECTION
SECTION
e V. Campbell
State V. Crawford
18,21
129 la.
1062
V. Crea
1041, 1853
73 Kan.
821, 2363
V. Crean
1434, 1442, 1447
20 Nev.
1138
V. Cremeans
1614
V. Cardelli
150
V. Crofford
1079
V. Cardwell
2071
V. Crone
1451
V. Carey 2056,
2057, 2060
!). Crouch
357, 498, 498, 2062
V. Carlisle
2272
V. Crow
988
V. Caimean
331
V. Crowe
233, 682, 987
V. Caron
957
V. Crump
18
V. Carpenter
357, 2062
V. Cummings
2580
V. Carr
2513
V. Dacke
205
V. Carter, 144 la.
2513
V. D'Adame
905, 1043, 1072
74 Kan.
1684
V. Dahlquist
18
V. Case
580, 2060
V. Daley
2559
V. Castigno
18
V. Dalton, 43 Wash
1839, 2100
V. Castle
933
65 Wash.
2056
s. Chamber of Commerce
2410
V. Danforth
166
V. Champoux
987
V. Daniels
1442
«. Charles 16,
1033, 1750
V. Darling
1079
V. Chisnell
2272
«. Davis
1818
V. Church 499, 84]
, 851, 2265
«. Davison
2446
V. Chynoweth
1018
V. Day, 108 Minn.
98
V. Clark, la., 140 N. W.
2513
188 Mo.
1618
34 Wash.
2501
V. Deal
2276
64 W. Va. 1254,
1445, 1450
V. Dean
198, 248, 1732
V. Clayton
246
V. Deatherage
276, 2272
1). Clifford
2194, 2221
V. Detwiler
62, 923
V. Cloninger
925
V. Dewey
2512
V. Cloud
2354
V. DeWitt
2272
V. Cobley
580, 2270
V. Dickerson
177, 363, 988, 1983
V. Coffman
168
V. Dilley
1079
V. Cohen
326
V. Dilts
2061
V. Coleman
V. Dipley
62, 1106
186 Mo.
108, 1671
V. Dix
1079
199 Mo.
1415, 1669
V. Dodson
2059, 2273
17 S. D.
363, 2016
J). Dolan
168
V. Colvin
246, 1442
V. Donavan
351
II. Connor
1620, 2061
V. Donovan
220, 460, 687
«. Conroy
1781
V. Doris
248, 988, 1434, 1451
«. Cook
852, 2501
V. Douglas
1873
«. Cooley
1974
V. Dowdy
1398, 1680
V. Coover
987
V. Downer
331
''v. Corpening
2105
V. Drake, 128 la.
770
V. Corrivan
2514
11 Or.
580, 2273
«. Costa
367, 1249
V. Draughon
1730
V. Cottrell
987
V. Drew, 110 Minn.
2282
V. Court
2513
179 Mo.
2513
». Cowing
681
V. Dudley
290, 778, 1136
V. Cox 2262, 2268,
2270, 2281
V. Duncan
1807
». Craft, 117 La.
1005
V. Dunn, 13 Ida.
7, 150
118 La.
247
179 Mo.
681
». Craig
1442
7(
V. Dunwoody
39
414
TABLE OF CASES CITED
State ;
SECTION
SECTION
te V. Durr
2582
State V. Gebbia
2072, 2073
V. Eder
987
v. Gentry
1398
, 1404, 1669
V. Effler
347
J). George
1974
V. Egbert
1130, 2062
V. Gerike
133, 168
■V. Eggleston
19, 398
2085, 2505
11. Gianfala 278, 821
, 833, 1440,
V. Elliott
728, 987
1450, 2100
V. Emerson
111, 1051
v. Gibson
2062
V. Erickson
1350
J). Gilmore
1079
V. Ethridge
1072
V. Goddard
1481
«. Evans
V 923
V. Godwin
2356
V. Exum 63,
108, 934,
1041, 1131,
v. Golden
246
1819
V. Goldstein
702
V. Falsetta
2326
V. Good
457
«. Farrier
2451
V. Goodager
20, 1263
11. Faulk
2089
V. Goodson 786,
1005,
1840, 1876,
V. Faulkner
2270, 2364
2079, 2191
V. Feeley
21, 63, 106, 1890
V. Goodsell
2060
V. Ferguson
2349
n. Gordon, 115 La.
2130
V. Fetterly
168, 399
1330, 2061
105 Minn.
1270
11. Fields
1079
v. Graham
1977, 2265
V. Finch, 71 Kan.
' 852
11. Gray
1029, 1442
54 Or.
390, 792, 1909
11. Green, 115 La.
1871
V. Findling
1750
127 La.
988
V. Fiore
42, 1388
V. Green, 229 Mo.
248, 851
V. Fisk
2514
v. Greene
V. Flanigan
561
152 N. C.
231
V. Fleetwood
1033, 1433
33 Utah
13
v. Fletcher
1021
38 Utah
1073, 1911
J). Fogleman
1899
V. Griffin
1135, 1136
V. Foley, 113 La.
1750
V. Griggsby
59, 987
247 Mo.
321, 1890
11. Grimes
1858
V. Forbes
2493
V. Groves
1350
V. Ford
150, 260
V. Gruber
290, 2272
J). Forrester
2344
V. Hairston
59
T. Forsha
18,
1270, 1876
V. Hall
331
V. Forshee
1079
V. Halverson
2034
V. Foster, 136 la.
855, 861
V. Hammons
2513
14 N. D.
26,944
V. Hancock
2230, 2550
V. Fournier
987
V. Hanlon
106, 248
V. Fowler
1138
V. Hansen
398
V. Fox
i270
V. Hare
56, 2056
V. Franklin, 69 Kan.
216
V. Harmon 1330,
1398,
1404, 2098
80 S. C.
1442
V. Harness
94c
>, 987, 1136
J). Freddy
2099
ji. Harras
2056
V. Freeman
177
J). Harris
V. Freshwater
149, 694,
2024, 2149
Del. 5 Pen.
2239
V. Fujita
770, 2061
112 La.
1440
V. Fuller, 34 Mont.
21,
1012, 2183,
131 La.
247
2264, 2265
209 Mo.
988, 1157
52 Or.
1033,
1432, 1434
14 N. D.
21, 1620
v. Gallman
1442
74 Wash.
1328
V. Gallo
900, 918
V. Harvey
2514
V. Gaylord
111, 141
77
V. Hassing
0
689
TABLE OF CASES CITED
SECTION
SECTION
State V. Hatfield
238, 2513
State V. Hummer
V. Haupt
923
128 la.
205, 1620
V. Hauser
2056
72 N. J. L.
216, 357, 1076
V. Haworth
499
73 N. J. L.
18
V. Hayden
1938
V. Humphrey
832, 852, 862
v. Hayes
1263
V. Hunt
168, 1154
V. Hazlett, 14 N. D.
770,
784, 1489,
V. Hunter, 181 Mo.
836, 2042, 2043
1496
143 N. C.
177
16 N. D.
363, 2512
V. Hutchings
2094
V. Hazzard
363,
1041, 1750
V. Hyde
363, 1976
V. Headley
^07
V. Icenbice
851, 860, 1135
V. Hector
2327
V. Ilomaki
,1842
V. HefFernan 1362,
1375,
1397, 1398
V. Indianapolis Gas Co.
2580
V. Heft
398,"2060
V. Inman
851
D. Heidelberg
1873
V. Jack
2258, 2281
V. Hembree
41, 390
V. Jackson, 128 la.
969
V. Hencken
1779
150 N. C.
1072
V. Henderson, 19 Ida.
168, 200, 398
79 Vt.
2530
186 Mo.
1852, 2081
V. Jacob
326
74S. C,
851
V. Jacobs
1157
29 W. Va.
89, 949
V. Jaggers
118, 276
V. Hendrick
18, 68, 133, 987
V. James
2273, 2276
V. Hensley
1835
D. James Co.
1840
V. Herlihy
1398, 2098
V. Jeffries
2264
V. Hessenius
1976
V. Jennings
278, 905, 1349
V. Hetland
2062
V. Jensen
357, 507, 2276
V. Hetrick
581
V. Johnny
832, 857
«. Heusack
987, 1270
V. Johnson, 133 la.
1855, 2062
V. High, 116 La.
276, 987
Kan., 140 Pac.
2501
122 La.
1841, 1842
Ill La.
357
V. Hinkley
1859
116 La.
1873
V. Hoben
2296
73 N. J. L.
905, 1072
v. Hoffman, 134 la.
1108,
1667, 1669
14 N. D.
1013, 2497
120 La.
1074
V. Johnston
2501
V. Hogan
499, 851, 1842
V. Jones, Cal., 139 Pac.
63, 794, 988
V. Hogg
276
127 La.
1476
V. Holcomb
200
145 N. C.
851
r>. Holter 168, 398,
1963, 2062
53 Wash.
2056, 2059
V. Hooper
1349
V. Judd
398
V. Hope
1819
V. Juneau
2056
V. Hopkins
\
V. Kaemmerling
2201
115 La.
2364
V. Kammel
569
i 118 La.
1671, 2167
V. Kane
1725
V. Hopper
1974
1977, 2059
11. Kapelino
2079, 2119
V. Hornaday
2060
V. Katon
987
V. Horner
851
V. Keefe
905
v. Horton, 247 Mo.
950, 2265
V. Keehn
784, 2349
100 N. C.
166
V. Keener
2276
V. Hosey
1983
V. Kehr
149
, V. Houghton
1909
V. Kelleher, 201 Mo.
111, 1072, 1442,
V. Howard, 120 La.
570, 1755
2272
30 Mont.
218, 987, 1890
224 Mo.
1434
». Hoyle
78, 2183
7
V. Kelliher
71
318, 2056
TABLE OF CASES CITED
SECTION
SECTION
State «. Kelly, 77 Conn. 41, 144, 166, 1725,
State V. Leasia
1195, 1242
2044
V. Le Blanc
988
71 Kan.
2478, 2580
V. Lee, 127 La.
839, 2550
22 N. D,
2513
228 Mo.
2060
■». Kennade
63
17 Or.
276
V. Kennedy
580
V. Legg
390, 735, 763
V. Kenny
218
V. Lem Woon
41, 936, 2277
«. Kent
694, 2016, 2024
V. Leo
1451, 2497
«. Kesner, 72 Kan.
276, 2071, 2078,
V. Leuhrsman
18, 2119, 2595
2081
V. Levich
326
». Kight
952, 2276
j}. Levy
21, 390, 2272
J). Kilduff
851
V. Lewis, 139 la.
2591
«. Kimes 278, 988,
1330,1398,2273,
112 La.
20, 357, 851
2276, 2513
181 Mo.
390
V. Kincaid
282
V. Lieberman
2056
V. Kinchen
1732
V. Lindsay
1921
V. King
1398
V. Lindsey
1750
V. Kline
1404
V. Linhoff
2511
V. Klute
1447
V. Lloyd
2195, 2269, 2270
«. Knapp, 70 Oh.
2072, 2100
V. Long, 201 Mo.
987
S. D., 144 N. W.
2273
238 Mo.
2062
V. KnifFen
1680, 2239
Mo., 165 S. W.
2061, 2390
«. Knoll
1442
V. Longstreth
1387, 1669
«. Knowles
V. Loser
2529
98 Me.
1270
V. Louie Moon
248, 1129
185 Mo.
1625, 2071, 2100
J). Lovell
1072, 2115
V. Knudtson
, 580,2059
V. Lovitt
1106
■B. KoUer
278, 391
V. Lowell
1141
«. Krinski
2264
iv. Luper
2237
«. Kritchman
2056
V. Lu Sing
2100
V. Kwiatkowski 762, 839, 861, 2071
V. Lyons
«. Kysilka
905, 1043, 1072
113 La. 233, 568, 689, 851, 1938,
v. Lahore
2273
2382, 2501, 2511
«. Labriola
1821
70 N. J. L.
2056
■B. Lamhert
276, 1614, 1616
V. McAllister
360
■e. La Mont
2276
V. McAnamey
149
V. Lancaster
398
V. McBride
701, 2016, 2020
«. Landers
851, 861
V. McClellan
1614
». Landry 117, 1154,
1163, 1168, 1802,
V. McClure
205
1803
V. McCool
169, 2062
«. Larkin
2273
V. McCoomer
1442
■». Larkins
2276
V. McCord
2081
D. La Rose
363
V. McDaniel
1126, 1750, 2512
V. Lastor
1157, 1750
V. McDonald 1481
1487, 1490, 1492,
•». Laughlin
851, 860
1605, 1633
1646, 1680, 1684
V. Law
569, 1445, 2385
V. McDonough
1890, 2115
u. Lawhorn
1138
V. McDowell
218
a. Lawrence, 28 Nev.
987, 2276, 2277
v. MacFarland
1073
74 Oh.
398
V. McGIothlen
2061
V. Lawson, 44 Mont.
1852, 1853, 2059
V. McGruder, 125 la.
754, 1920, 1958
40 Wash.
1354
V. Mcintosh
1072, 2275
V. Lax
2513
V. McKay
2239
J). Leakey
227, 689, 2512
7
V. Mackinnon
72
1254
TABLE OF CASES CITED
SECTION
SECTION
State V. McKowen
390, 460, 2265
State «. Mitchell, 130 la.
247
V. McLain
140
' 229 Mo.
2276
V. McMillan
1858
V. Mobley
133, 398, 2061
V. McNamara
397
«. Momberg
2493
V. McRae
1398
V. Monich
16, 561, 861
, 862, 1442,
V. Madison
1908, 2183
1451, 2550
». Maggard
1126, 1128
V. Montgomery, 35 Miss.
530
V. Magill
246
26 S. D.
861
V. Major
1072
56 Wash.
905
V. Mallahan
2056
V. Moon
901, 905
V. Mallonee
1620
V. Moore, 77 Kan.
397'
V. Malmberg
951, 1005
36 Utah
821
V. Mann 987
1079
2100, 2232
Utah, 126 Pac.
2086
V. Manning
1079
». Moran
19, 858
V. Manuel
^
987
V. Morgan
V. Marion
852
196 Mo.
2395
D. Marselle
398, 2071
35 W. Va.
500
V. Martin, 229 Mo.
19
V. Morin
581, 1058
47 Or.
390, 396, 1330
V. Morris
2512
V. Marx
2044
V. Mortensen, 27 Utah
1802, 1803
- V. Matejousky
1853
V. Mosher
1382, 1398
V. Matheson
276, 795, 1041
V. Mount
987, 1270
V. Mathews, 133 la.
1856, 2237
V. Moyer
59, 392
119 La.
246, 247
V. Mullins
852
202 Mo.
278
i>. Mungeon
1072,
2060,
2269, 2270
V. Matlack
2215
V. Murphy, 17 N. D.
318
V. Mattivi
398, 2273
128 Wis.
2281, 2281a
V. May
852
V. Murray
664
V. Mayo
1033, 2511
V. Myers, 198 Mo. 580, 1852,
2100, 2115
V. Megorden
568
221 Mo.
2276
V. Meister
1620
V. Myrberg
507
•V. Melton
276
V. Nash
276
V. Menard
1335
V. Nathoo
16f
), 168, 1154
V. Merchants' Bank
1079
V. Naughton
2252
V. Merkel
2100
V. Neasby
1496
V. Merrill
2072, 2081
V. Nelson, 68 Kan.
1398, 1404
V. Meyer
507, 1821
' ^ 91 Minn.
21, 2327
V. Meyers
1013, 1398
1). Nelson, 17 N.
D.
2512
V. Middleton
834, 855, 858 |
39 Wash.
IS
!,168
398, 2088,
V. Miles
1873,
2273, 2356
2235,
2237,
2239, 2339
V. Miller
V. Nergaard
987, 1143
Del., 3 Penn.
2083,
2086, 2239
V. Nethken
238
71 Kan.
21, 168, 667, 770, |
V. Neubauer
398, 851
1481, 1644
V. Nevada C. R.
Co.
1230, 1960
67 Mo.
1034
V. Newberry
2239
71 N. J. L. 1918,
1977,
2252, 2265
v. Newcomb
2265
43 Or.
792,
1157, 2277
V. Newman
68 Wash.
815, 855
93 Minn.
2497
24 W. Va.
2042
34 Mont.
318
V. Millican ■
142
73 N. J. L.
331
V. Mills
987
V. Nieburg
68,
2088, 2245
V. Minneapolis Milk Co.
669
V. Nippert
1219,
1273,
2375, 2582
'v. Minnick
1051, 2513
77
v. Norris
'3
2062
TABLE OF CASES CITED
State
1). North
Novak
Nowells
Noyes
Nugent
134 la.
116 La.
Nyhus
O'Brien
, Oden
Oien
Oliphant
Olson
O'Neil
Oppenheimer
O'Rourke
Orth
Osborne
Oswalt
Overland
Overson
Overton
. Owens
. Page
Palmberg
Pamelia
. Papa
. Parker, 134 N. C.
60 Or.
Patchen, 36 Nev.
37 Wash.
, Patton
, Paxton
Peacock
Pearson
Peck
Peeples
Pell
Pemberton
Pence
Penna
Peterson
Petty
Phelps
. Phillips, 118 la.
24 Mo.
185 Mo.
18 S. D.
Phyler
Pienick
Pierce
Pirkey
Pitt
987,
367, 1269,
276,:
168, 398,
689,
507,
SECTION
SECTION
1028
State V. Poe
276, 2511
1136, 1761
V. Poole
851
457, 568
V. Pope
2595
1810
!). Porter
2569
11. Potello
2513
168
V. Potter
63
783
V. Powell 111, 792,
987, 1157, 2591
1835, 2276
u. Powers
1750
2555
V. Pratt
2042
1890, 2276
z>. Pray
1842
987
V. Priest
923
923
V. Pruitt
398
1159, 1978
V. Pryor
359
341, 1230
V. Psycher
2513
321
V. Pugh
987
1010
V. Quen
105
224
V. Quigley
233, 2501, 2511
nil, 1835
V. Quirk
987
398, 1135
». Raice
63, 248
987, 1270
V. Ralston
2062
2497
V. Rambo
2272, 2354
397
s. Raphael
2513
1036
V. Rasco
177
20, 397
V. Rash
133, 398, 2061
1154, 2582
V. Ray
2056
851
V. Raymo
1732
276, 788
ji. Raymond
2062
21, 1138
V. Rea
216
246
V. Ready
112
2089
V. Reed, 53 Kan.
1450
2061
250 Mo.
63
759, 905
V. Rees
19
1058
V. Reese
987
1439
ji. Register
2056
527, 2056
V. ReiUy, 22 N. D.
2059
2513
25 N. D.
18, 681
2276
». Reinheimer
1667
1841
v. Remington
793, 1978
963
V. Rennick
2060
2259
V. Rester
691
1012, 1013
s. Rhoades
1230
987
V. Rhoads
1850
2265
J). Rhys
1808
2374
V. Richard
2595
1669
■e. Richards 27£
), 728, 988, 1983
2115
V. Richardson, 194 Mo.
923, 1072,
2062
2233
2060
248 Mo.
2042
363
11. Richey
398
2072
11. Richmond, 138 la.
1062
1974
186 Mo.
2513
1807
«. Ricksecker
2575
1817, 1828
V. Riddle
1405
T,
'4
TABLE OF CASES CITED
State
SECTION
SECTION
e V. Rivers, 82 Conn.
133, 987
State V. Sederstrom
905
58 la.
969
V. Seery
2130, 2272
V. Roberts, 201 Mo.
321
V. Sejours
499, 1404
28 Nev. 216, 792, 987, 1442 |
V. Seligman
321, 1873
V. Robertson
905
V. Sexton, 91 Kan.
987
V. Robinson, 126 la.
770
37 Wash.
1877
112 La.
218, 2272
V. Seymour
2016
V. Roby
1157
V. Sharp
1126, 1131
V. Rocker 1645, 2085,
2230, 2231, 2506
V. Shaw
18
, 987, 1674
V. Roderick
198, 247, 248
V. Sheets
398
V. Rodriguez 20, 246
, 247, 1876, 1906
V. Shelton
580, 2056
V. Rogers, 115 La.
1021, 1040, 1861
V. Sheltrey
2079
31 Mont.
987, 1810, 2276
V. Shockley
21, 987,
2270, 2276
V. Rogne
2264
V. Shouse
928, 2243
V. Rogoway
862, 2071
V. Silverio
2497
11. Romeo
21, 2100
V. Simes 492
497, 498, 770, 778
V. Romero 62, 200, 923, 1335 |
V. Simmons, 74 Kan.
18
, 928, 1983
V. Ronk
198, 451
78 Kan.
1404, 2276
1). Rooke
1853
143 N. C.
1967
V. Rosa, 71 N. J. L.
967, 1042
V. Simon, 131 La.
397
72 N. J. L.
1072
70 N. J. L.
254, 1781
V. Roselair
1958
71 N. J. L.
21, 2056
V. Rosenthal 158, 664, 961, 1244, |
«. Simonds
2276
1272, 1678, 1712
V. Skiilman
797,
2016, 2272
t. Routzahn
352
V. Slattery
205
V. Rowell
21
V. Smalls, 73 S. C.
363
V. Royce
821, 2183, 2264
63 Wash.
2027
T. Ruck
1079, 2265
V. Smith, 124 la.
819
V. Rudolph
351
129 la.
2529
«. Rugero
21, 855
203 Mo.
498, 811
V. Rumble
689, 1935, 1938
33 Nev.
18, 2060
V. Russell
166
138 N. C.
851, 2300
V. Rutledge, 135 la.
63, 1732
18 S. D.
200, 987
37 Wash.
1977, 2042
V. Smokalem
2273
V. Ryan
276, 1079
V. Snyder, 67 Kan.
991
•0. Ryder
1729, 2020
86 Vt.
68
V. Ryno
791, 797, 2016
V. Sortor
396
«. Sanders
2265
». Southern R. Co.
1684, 2572
1). Sappienza
2512
V. Sovern
111
V Sargood
363, 609
V. Spanos
862
V. Sauls
944
V. Sparks
2513
V. Savings Bank
1350
V. Spaugh
276, 390, 851
V. Scaduto
111
V. Speyer
228, 1938
V. Scampini
2577
V. Spivey
987
1270, 2277
V. Schaeffer 1219
1273, 2158, 2375
V. Springer
1644, 2529
V. Schmidt
1159, 2183, 2264
V. Staber
21
1). Schmulbach
276
11. Stackhouse
2061
V. Schnettler
21, 343
V. Stallings
860, 1750
V. Schonberg
2513
V. Standard Oil Co.,
218 Mo
2259
V. Schreiber
2497
Mo., 91 S. W.
94,2195
V. Schueller
398
D. Stapp
2056, 2384
V. Scott
19
V. Stark
318, 2061
V. Sebastian
398, 1135, 1141
7
V. Start
75
194, 360
TABLE OF CASES CITED
State ■
SECTION
SECTION
te V. Stebbins
861, 861
State V. Toohey
351, 414
V. Steele
1850
V. Tracey
1012
V. Steen
254, 1621
V. Trail
111
V. Stephens
905
V. Trimble, 104 Md.
747
V. Stephenson
1530, 1558
Mp., 163 S. W.
1859
V. Stevens
V. Trueman
1974
133 la.
1159, 2062
V. Truskett
63, 2511
19 N. D.
1378
V. Trusty
357
1481, 1856
V. Stewart, 85 Kan.
1388, 1398,
!). Turley
1124
1126, 1128
1409, 2241
V. Turner, 82 Kan.
821, 855, 2183
117 La. 2079,
2191, 2695, 2241
82 S. C.
205, 2061
i>. Stimpson
200, 923, 987
V. Twining , \
2272
V. Stone, 74 Kan.
398
V. U. S. Railways & E
.Co.
2509
66 Wash. 21,
1003,' 1270, 1620
V. Underwood
682
D. Stout
142
v. Urie
2276
V. Strait
2183, 2264
V. Usher, 126 la.
1349
V. Strodemeier
1029, 1051, 2349
136 la.
2155
V. Strong
792, 841, 1157
V. Uzzo
1033, 1907
V. Stukes
987
V. Vacos
63, 106
V. Stutches
2513
V. Vance 21, 1398,
1404,
1460, 1669,
V. Sublett
2062
2276
V. Sudduth
1071, 1072
V. Vanella 660, 728,
1398,
1974, 2692
V. Suitor
2183
V. Van Winkle, Del., 86 Atl.
1442
V. Superior Court
1074
18 la.
2270
V. Swartz
1022
V. Vaughan
218
V. Sweeney
1021
V. Vey
851, 2264
D. Swenson
682, 1072, 1442
V. Vickers
2155
V. Swindall
133
V. Viscome
1618
V. Swink
2577
V. Von Kutzleben
861
V. Swisher
1072
■D. Voorhies
1977
V. Sysinger 398
, 987, 2025, 2339
v. Waldron
198
ii.Tawney
1983
V. Waldrop
2132
V. Taylor
J). Walke
168
36 Kan.
852
V. Walker, 124 la.
1079
202 Mo.
1867, 2276
133 la.
774
> 57W. Va.
772, 1819, 2243
V. Wallace, 78 Conn.
1152
V. Teachey
759, 1442
162 N. C.
2183, 2339
V. Teasdale
1234
V. Wain
1012, 1873
V. Terrs Haute & I. R.
Co. 1350
V. Walsh
1645, 2069
V. Thomas, 135 La.
821, 1873
V. Walton
1398, 1404
250 Mo.
851, 860, 861
1). Wappenstein 343,
1079,
2066, 2060
V. Thompson, 127 la.
106, 194, 1700
V. Warner /
2281a
116 La.
1329, 2119
.' V. Warren
27, 905
161 N. C.
2265
V. Washelesky
2044,
2072, 2073
49 Or.
63, 111
V. Washing
862, 861
31 Utah 168,
2059, 2086, 2529
V. Waterbury
2513
v. Thome 21
, 987, 2268, 2276
V. Waterman
2061
V. ThomhiU
2277
V. Waters
1853
V. Thornton
2270
V. Watkins
1442, 1447
V. Thrailkill
248, 396
V. Way
1760
V. Tilden
398
V. Weil
1384
V. Tillinghast
267, 2085, 2088
V. Welch
2061
V. ToUa
247, 507
77
V. Wellman
6
923
TABLE OF CASES CITED
State
SECTION
SECTION
te V. Wells, 33 Mont.
959
State V. Woodworth
nil
35 Utah
861
V. Wooley
2232
V. Wentworth
158
V. Woolridge
1330,
1331
1349
V. Wenzel
7,367
V. Wooten
2529
V. Werner 507, 1138,
1761,
1867, 2382
V. Workman
205
1620
V. Wertz
1051,
1890, 1969
V. Worthen
1835,
1839
2512
V. West, 11 Ida.
2354
V. Wright, 199 Mo.
2513
24 S. D.
2115
20 N. D.
2495
V. Westcott
832, 861, 2071
V. Yates
21, 106
V. Wetter
232
V. Yee Gueng
1043
1446
V. Wheeler, 172 Ind.
1350, 1684
V. Zarlenga
1411
129 la.
21
V. Zeller
862
89 Kan.
351
V. Zorn
246,
1446
1451
141 N. C.
2192
ex rel. Boston & M. C. C. & S. M.
V. Whitbeck
1977
Co. V. District Court
1862
V. White, 48 Dr. 561
,580,
1079, 1976
ex rel. Crenshaw v. Joseph
1350
77 Vt.
1781
ex rel. Heinze v. District Court
1862
V. Whitsett
397, 497
ex rel. Mendenhall
V. District
V. Whitworth
2062
Court
X
1862
V. Wideman
1062
ex rel. Nowakowski v.
Lockridge
1909
V. Wigger
1807
State Bank v. McCabe
1073
V. Wilcox, 90 Kan.
2298
V. Young
2433
21 S. D.
2595
State Bank & T. Co. v. Evans
1213
V. Wilhite
1693
State Historical Ass'n v. Silverman
2465
V. Wilkerson .
2494
State Life Ins. Co. v. Johnson
340
«. Wilkins
397
Statham v. Statham and Gaekwar of
V. Willet
398, 1135
Baroda
2566
V. Williams, 30 La.
2079
Staunton Coal Co. v. Bub
208
Ill La.
905
Steadman ». Steadman
'
1304
120 La.
851
Stealey v. Kansas City
2575
96 Minn.
21, 1750
Stearns v. Kennedy
1067
28 Nev.
21,
1810, 2272
V. Long
(
36,76
31 Nev.
861
Stebbins v. Duncan
1404
35 Nev.
2059
Steber v. Chicago & N. W.
R. Co
,
1012
46 Or.
2081
Steen v. State
1853
36 Utah
357, 987, 1135
Stegall V. Thurman
2375
V. Willing
861, 866
V. Wright
2432
V. Wilmbusse
, 1853
Steidtmann v. Lay Co.
2464
V. Wilson, 5 Penn. Del.
605
Steininger v. Hoch's Ex'r
285
la., 141 N. W.
1807, 1976
Steinkuehler v. Wempner
2500
158 N. C.
59, 988
Steketee v. Newkirk
2383
68 Wash.
861
Stemmler v. New York
2593
V. Winslow
1135
Stephens v. CoUison
2336
2337
V. Winter
326,
1326, 2513
V. Elliott 1158
1160,
1164
1698
V. Wise
1625
V. Hoffman
1388
V. Wolfley
150, 2511
Sterling v. Park
2456
V. Wong Si Sam
2059, 2060
V. Union Caiibine Co.
223
V. Wood
398
Stevens v. Boston Elev. R.
Co.
282, 283
V. Woodard
1669
V. Continental C. Co.
1073,
1076
2510
V. Woodrow
1750, 2239
V. Friedman
1719
V. Woodward
V. Oliver
1681
182 Mo.
852
V. People
688, 967
191 Mo. 923
987,
1270, 2277
V. State
246
777
TABLE OF CASES CITED
SECTION
Stevens v. Stevens
1736, 2523
V. United G. & E. Co.
2510
V. Worcester
2203
Stevenson v. Haynes
1154
Steward v. State
1873
Stewart v. Com.
200
V. Doak Bros.
1049, 1082
B. Fleming
2416
0. Hunter
150
V. Iowa C. R. Co.
2509
V. L. B. Land Co.
1680
V. N. C. R. Co.
2122
J). Sloss-Sheffield S. & I. Co. 561,
1339
J). State 950, 1263
J). U. S. 276, 1684
J). Van D. C. Co. 2509
V. Walker 1267, 1736, 2329, 2503
Stickney v- Hughes 18, 2433
Stickney's Estate 1350
Stiebel v. Grosberg- 2410, 2432
Stiles V. Beed 2520
Still V. State 1434
Stitt V. Rat Portage L. Co. 19, 2497, 2498
Stitzel V. Miller 2016, 2026
Stockham v. Malcolm 246, 950
Stocking X. Fairchild 2134
Stockton v. State 1853
Stokes ». Hardy 1382
Stone V. Case 2508
■B. Com. 1576
V. L. B. & B. St. R. Co. 792
«. Montgomery 530
V. Moody 2416
V. Seattle 1700
». Stone 1053, 1076
V. Victor E. Co. 1417
Stone & Webster E. Co. v. Melovich 461
Stoner v. Zachary 2415, 2464
Storer v. Gowen 2113, 2115
V. Markley 20
Stotler V. Chicago & A. R. Co. 571
Stouse V. State 235
Stout V. Sands 291, 907
V. State 177
Strader v. Snyder 74
Strahl V. Western G. Co. 2441
Strand s. Grinnell A. G. Co. 2354
Strasser v. Goldberg 581
V. Stabeck 791
Stratton v. Athol Savings Bank 2408
V. Nichols L. Co. 282, 969
Strauss v. Hutson 2235
SECTION
Streator I. Tel. Co. «. Continental T.
C. Co. 2496
Strebin x. Lavengood 966, 1044, 1351
Strecker ji. Railson 1681
Streeter v. Marshalltown 1808
Strickland v. Capital C. Mills 2313, 2315
V. State 1938, 2071
Stroberg v. Merrill 20
Strode v. Beall 1777
Strong V. Carver C. G. Co. 2465
V. State 280, 952
Stroupe V. Hewitt 2410
Struth V. Decker 1938, 1958
Stuart V. Pederson 1684
Studebaker v. Faylor 1330
Studwell J). Bush Co. 2442
Stuke V. Glaser 1303
Sturgis V. State 905, 1079, 2272
Stutsman v. Sharpless 680, 689, 1938
Suckow V. State 1012
Suffolk & C. R. Co. V. West End L. &
I. Co. 1640
Sullivan v. Blount 1564, 1582
V. Fugazzi 916
V. Girson 285, 382, 716, 720
». Godkin 1555
V. Hill 2195, 2374
V. Manston M. Co. 377
V. State 359
V. Sullivan 291
Sullivan Timber Co. v. Louisville &
N. R. Co. 2124
Suman v. Harvey 2463, 2472
Summitt V. U. S. Life Ins. Co. 1684
Sun Fire Office; see Sun Ins. Office
Sun Ins. Office v. Western W. M. Co.
662, 1921, 1976, 2580
Sundvall v. Interstate Iron Co. 2415
Superior Drill Co. e. Carpenter 1078
Supple V. Suffolk S. Bank 1676
Supreme Council v. Champe 1201
Supreme Lodge v. Meyer 5, 2388
Supreme Lodge K. of P. v. Bradley 1073
Surbaugh v. Butterfield 1078
Surface v. Bentz 2306
Sutton V. Com. 1852
, V. State 68
». Weber 2442
Swaine v. Man-iott 2520
Swaisland v. Grand Trunk R. Co. 2319
Swanson v. Pacific Shipping Co. 1750
Swanzy v. Kolb 582
Swearingen v. Wabash R. Co. 41
778
TABLE OF CASES CITED
SECTION
Swedish-Amer. Tel. Co. v. Fidelity
& C. Co. 1859, 2264, 2275
Sweeney v. Erving 2509
V. Sweeney
119 Ga. 1078, 1195, 1664
121 Ga. 1129
Swiger v. Swiger 1362, 2498
Swindell v. Ford 1299, 1320, 2529
Swing V. Cloquet Lumber Co. 1256
Swope V. Seattle 1907
i>. Ward 21, 1778, 1779
Swygart v. Willard 229, 1021, 1938, 1975
Sykes v. Beckwith 1244
V. State 398
Sylvester v. Ammons 717
Taber v. New York P. & B. R. Co. 907,
2008
Tabor v. Tabor 1198
Tackman v. Brotherhood 460, 1073
Taft V. Little 759, 760, 1250, 1387, 2115
V. Taft 969
Tagert v. State 1195, 1974
Taggart v. U. S. 2511
Tainter v. Wentwprth 2442
Tait V. Locke 2416
Talbert v. State 2501
Taliaferro v. U. S. 367
Talmadge v. Baker 207
Tang Tun, in re 1354
Taplin v. Marcy 581, 2556
Tarasinski v. State 851, 1079
Tate V. Rose 382, 1956
V. State 2060
Tayloe v. Riggs 2448
Taylor v. Felder 1404
V. General Ace. Ins. Co. 41
V. Globe Ref. Co. 1392
V. Grand Ave. R. Co. 1976
V. Grand Lodge 1081, 1491
V. Higgs 2498
V. Johnson 615
V. McClintock 616, 682
V. Schofield 377, 987
V. State
120 Ga. 1433, 1674
121 Ga. Ill, 247, 1732, 1985
126 Ga. 1404
Ga. App. 79 S. E. 56
185 Mo. 2364
Tex. Cr., 97 S. W. 158, 2153
SECTION
Taylor v. Taylor
233, 1671
V. Taylor's Estate
1414, 1415, 2015
V. Tigerton L. Co.
1062
V. U. S.
2270
Teasley v. Bradley
1062
Teckenbroeck v. McLaughlin 1738
Telfair v.' State 950
Telluride Power Co. s. Brunean 463
Telluride P. T. Co. v. Crane Co. 2434
Temple ii. Phelps 2311, 2537
Tennessee C. I. & R. Co. v. State 463
Terrell, ex p. 2199
Territory v. Boyd 967, 1260
V. Caldwell 218
V. Castro 1076, 2086
V. Cheong Kwai 584
V. Chung Ning 851, 2265
V. Cotton 1951
V. Eagle 1442
V. Emilio 851
V. Evans 1398
V. Harwood 747, 754
V. Kawano 1393, 1810
V. Livingston 218, 905, 2513
». Lucero 276
V. McNab 1938
V. Meredith 784
V. Neatherlin 1079
11. Pierce 59
V. Schilling 1761
V. Sing Kee 969, 2183
V. Trapp 111
V. Valles 150
V. Watanabe 363, 1163
V. West 347
Terry v. Broadhurst 1312
V. Clark 1779
V. State 1273
Teston v. State 969
Tetterton v. Com. 1873
Tewes v. North German L. S. S. Co. 2415
Texas & P. R. Co. d. Goggin 21, 1067
Thaw, in re 2199
Thayer v. Usher 1072
Theriot's Succession 628
Thibodeaux v. Thibodeaux 1411, 2047
Thiede v. Utah 1850, 1854
Thomas v. Byron Tp. 1808, 2382
V. Clarkson 2636
V. Com. 20
V. Fos 916
J). Johnston 2442
V. Northwestern M. L. Ins. Co. 2637
779
TABLE OF CASES CITED
Thomas v. Shea
V. State
139 Ala.
47 Fla.
V. Thomas
V. U. S.
V. Weintraub
V. Williamson
V. Young
Thomas' Estate
Thompkins v. Com.
Thompson, in re
Thompson v. Calhoun
V. Coulter
SECTION
406
2272
293, 782
2525
2511
1840
1658, 1681
2115
1739
1852
1081, 1458
2184, 2520
2065
V. Great Western Ace. Ass'n 2450
V. King 1313
V. Los Angeles & S. D. B. R. Co. 664
V. Mecosta 1042
V. Purdy 2094
V. State, 66 Fla. 2529
84 Miss. ■ 396
6 Okl. Cr. 1079
Tex. Cr., 89 S. W. 2079
V. Thompson 1081
V. U. S.
144 Fed. 216, 270, 390
202 Fed. 523
V. Williams 2504
Thompson-Starrett Co. v. Warren 1003
Thomson v. Issaquah S. Co. 283
V. Maryland Gas Co. 2319
Thorgrimsen v. Northern Pac. R. Co. 2509
Thorman's Estate 987, 2052
Thornton v. Smith 1239
Thornton-Thomas M. Co. v. Brether-
ton 18
Thorp's Will 1072, 1651
Thrash v. State 1270
Thrasher v. State 2385, 2389
Throckmorton v. Holt 112, 1736
Thrush v. FuUhart 1073
Thurkettle v. Frost 258
Thurman v. Leach 1587
V. State 834, 860, 862
Thurston v. Fritz 1436
V. Tubbs 2408
Thurston's Adm'r. v. Prather 87
Tibbs V. Com. 1442
Tiborsky v. Chicago M. & St. P. R.
Co. 1750, 2509
Tichborne Case, The 1005
Tifft V. Green 1680
Tillman v. State 1476
SECTION
Tilton V. State
1835
Times v. Com.
852, 2273
Tiner v. State
1157
Tingley v. Times M. Co.
692
Tinker v. State
2512
Tinkle v. Wallace
1871, 1873
Tinnan v. Fitzpatrick
2106
Titanic, The
6
Title Ins. & Trust Co. v. Ingersoll 1109
Titterington v. State 1012
Tobakin v. Dublin S. D. T. Co. 2319
Tobin V. McArthur 2442
Todd J). Crail 1880
V. Fenton 173S
V. Todd 2421, 2500
Toledo Computing S. Co. v. Comput-
ing S. Co. 1657
V. Garrison 2415
Toledo St. L. & W. R. Co. v. Burr &
Jeakle 1062
Toledo Traction Co. v. Cameron 6, 792,
1404, 1411
Toliver v. State 68
ToUifson V. People 967, 987
Tom Hong v. U. S. 1354
Tomlin V. Woods 1681
Tomlinson ». Derby 1028
V. Sovereign Cariip 1671
Tompkins v. Com. 2110, 2237
V. Fonda G. L. Co. 1458
V. Tompkins 2165
Tong Kai v. Terr. 2056
Tonopah Lumber Co. v. Riley 1044_
Tonopah & G. R. Co. v. Fellanbaum 382
Toole V. Crafts 581
V. State 1354
Toomer v. State 861
Topeka v. Cook 2575
Topfer V. Topfer 2046
Toronto G. T. Co. v. Municipal C.
Co. 1856
Totten «. Totten 1135
Tousey v. Hastings 2498
Towaliga Falls P. Co. v. Sims 569
Tower Co. 1). Southern Pac. Co. 2464
Towle V. Stimson M. Co. 2509
Towles V. McCurdy 2384, 2391
Towner v. Towner 2500
Townsend's Estate 229, 1738
Tracy v. O'Reilly 2474
Tracy & Co., in re 2264
Trafton v. Osgood 527
Trailer v. State 728
780
TABLE OF CASES CITED
SECTION
Trailer's Case 867
Trammell v. Swift F. Wks. 2444
Travelers' Ins. Co. v. Davies 1700
V. Henderson C. Mills 1493, 1503
Travers v. Casey 2467
V. Eeinhardt 2082, 2083
Treiber v. McCormack 2338, 2340
Triangle Lumber Co. v. Acree 2220
Trim v. Fore River S B. Co. 2509
Tripp V. Macomber 1576
Tri-State Milling Co. v. Breisch 1704
Trombley v. Seligman 1971
V. Stevens-Duryea Co. 150
Trometer v. District 1907
Trough 1). Trough 2067, 2069
Trull V. Modern Woodmen 2388
Tfuman, re 2531
Tsuruda v. Farm 1405
Tubbs V. Mechanics' Ins. Co. 716, 1955,
2464
Tucker v. B. & M. R. Co. 93
V. Duncan 1225
V. Colonial F. Ins. Co. 21, 716
V. Glew 2520
V. Helgren 1676, 2520
V. People 1877
V. Tucker 1194
V. U. S. 278, 2264
Turgeon v. Woodward ' 1566
Turley v. State 1977
Turlock F. J. Co. v. Pacific & P. S. B.
Co. 2463
Turman v. State 1130, 2265
TurnbuU v. North British R. Co. 2203
Turner v. American Security & T.
Co. 19, 689, 1938
V. Cocheco Mfg. Co. 792
V. Com. 789
V. Mfrers.' & Consumers' Coal Co. 2416
V. Osgood A. C. Co. 2556
V. State, 100 Ark 524, 1270
95 Miss. 1008, 1013
61 Tex. Cr. 1938
V. Turner 1078, 1465, 2296
V. Williams 2506
Turner's Trial 56
Turner's Trustees v. Washburn 610
Turpin v. Com. 1806
Tuttle V. Boston 1350
V. Missouri Pac. R. Co. 2509
!). People 821, 852
Tutwiler C. C. & I. Co. v. Nichols 18
Twining v. New Jersey 2250, 2252, 2272
SECTION
Tyrrel v. State
507, 2115
Tyson v. Joyner
2516
V. Shueey
1587
U
Uggen V. Bazille
1040
Ulrich V. People
1393
Underwood v. Com.
1802, 1852
V. State
2183, 2264
Ung King, ex p.
1354
Union Construction Co. v. Western U.
Tel. Co. 2155
Union C. Ins. Co. v. Pollard 2573
Union Coll. Co. v. Superior Court 1856
Union Hosiery Co. v. Hodgson 437, 1969
Union I. & F. Co. v. Sonnefield 1371
Union Pacific R. Co. v. Day 2303
V. Field 21, 961, 1807
V. Lucas 716
V. M'Mican 688
V. Stanwood 463
V. Thomas 2382, 2389
Union R. Co. v. Hunton 20, 463, 714, 1873
Union Selling Co. v. Jones 2463
United Amer. F. Ins. Co. v. American
Bonding Co. 1077, 1078
United Breweries Co. v. O'Donnell 1012
United R. & E. Co. v. Corbin 18, 569, 687
United States v. American Tobacco
Co. 2200
V. Armour & Co. 2281a
V. Brod 2281
V. Chu Hailg 1354
V. Cobban 2364
V. Cohen 1404
V. Collins 2200, 2271, 2272
«. Densmore 198
V. Foster 2551
»."Gin Hing 1354
V. Goldstein 2282
V. Greene 260, 1373, 1398
v. Griego 2511
v: Halstead 2264
V. Harris 2264
V. Hung Chang
126 Fed. 571, 1354, 2256
134 Fed. 167, 1154, 2246
1). Jordan 1662
V. Ju Toy 1354
V. Kimball 2268, 22811, 2281a
V. Louie Juen 2066
V. Meyers 2245
V. Mills 2183
781
TABLE OF CASES CITED
United States v. North
2016
V. Pierson
1680
V. Praeger
2270
J). Price
2268
V. Regan
,2498
V. Rhodes
mni
V. Rispoh
2239
J). Sanborn
2199
V. Shipp
1815
V. Simon
2281, 2282
V. Sims
520
V. Sing Tuck
1354
V. Swift
2281
V. Tallmadge
2364
V. Terminal R. Ass'n
2200
V. Thompson 527, 2042, 2056, 2060
V. Tom Wah 2256
V. Wilson 2183, 2264
V. Wrenn 847
United States, for use of E. L. C. Cu.
V. U. S. Fidelity & G. Co. 1063, 2592
United States F. & G. Co. v. Des
Moines Nat'l B'k 38
United States Smelting Co. b. Parry 1951
United States Wringer Co. v. Cooney 1036
United Surety Co. v. Meenan 2169
University College of N. W. v. Taylor 2452
Updike V. State 1445
Upton V. Tribileock .2415
Urdangen v. Doner 1086
Usher v. Daniels 2438
a. Severance 2498
Utermehle v. Norment 1738
Utter V. Sidman 2462
Uuku V. Kaio 1495
UzzeU V. Horn 1225, 1651, 2495
Vagts V. Utman 1779
Vaillancourt v. Grand Trunk R. Co. 2416
Yalente v. Sierra R. Co. 2509
Valiquette v. Clark B. C. M. Co. 377
Van Alstyne, in re 2408
Vance v. Heath 2442
V. Terr. 1853
Van Cott V. North J. St. R. Co. 2495
Van der Aa v. Van Drunen 2408
Vander Velde «. Leroy 458
Van Diemen's Land Co. v. Marine
Board 2465
Vandiveer, ex p. 1010, 1620
Van Hall v. Rea 1651
SECTION
Van Horn v. Van Horn 64, 68
Van Houten's Will 1671
Vann v. State 1037
Van Ness v. New York & N. J. T. Co. 714
Vannest v. Murphy 1738, 2503
Van Norman v. Modern Brotherhood 1414,
2510
V. Young 2408
Vano V. Canadian C. C. Mills 1856
Vansant v. McPherson 2215
Vantine v. Butler 1491
Vanvalkenberg v. Vanvalkenberg 1738
Varner v. Interstate Exchange 2536
Vaughn v. State 950
Veazey's Will 2314
Veeder v. Gilmer 1347
Veit V. Class & N. B. Co. 199
Venbuve v. Lafayette W. Mills 2509
Venner v. Chicago City R. Co. 1858
Vermillion -p. Parsons 1779
Vezey v. Rashleigh 2455
Vick V. State 987
Vickers v. U. S. 414
Vickery v. State 586
Vidger Co. v. Great Northern R. Co. 463
Viemeister v. White 2580
Vigel V. Hopp 2047
Villineuve v. Manchester St. R. Co. 1028,
1263
Vincent v. Mutual R. F. L. Ass'n 1873,
2491, 2537
Viheberg v. Jones 2444
Vines, Estate of 797, 2463
Vinson v. Knight ' 2515
Virginia-Carolina C. Co. v. Knight 393,
1063, 1951, 2319
Virginia I. C. & C. Co. u. Tomlinson 561,
1951
Vivian's Appeal 1715, 1738
Vizard v. Moody 1299, 2016
Vogel V. State 2061
Vogeler v. Devries 2494
Vogt V. Shienebeck 2463
Volusia Co. Bank v. Bigelow 745
Von Ferber v. Enright 1859
Vreeland v. Vreeland - 2506
W
W. V. S.
2020
W. V. W.
2221
Wabash R. Co. v. Hassett
2536
V. Thomas
2415
782
TABLE OF CASES CITED
SECTION
Wabash S. D. Co. v. Black 250, 949,
1951
Wade V. Atlantic L. Co. 1350
V. Carolina T. & T. Co. 1943
V. Galveston H. & S. A. R. Co. 2016
V. McDougle 1062, 1257, 1778
V. Southern R. Co. 1062
Wadleigh v. Phelps 2437
Waggoner v. State 660
Walden v. Bankers' Life Ass'n 1671
Waldner v. Bowdoin S. Bank 377
Waldrop v. State 1008
Walker v. Baldwin 772
V. Green 2408
V. Harold 1086
V. Lee 18
V. Shepard 1352
D. Southern R. Co. 1232
V. State
139 Ala., 35 So. 141, 293
137 Ga. 1750
165 Ind. 133, 398, 905, 987
V. Walker 2086
V. Wamer 2520
21. Williamson 458
Walker's Assignees v. Walker 615
WaUace v. North Ala. T. Co. 1950
V. Seaboard A. L. R. Co. 461
V. State 2061
V. Wallace 2063
Wallen v. Wallen 1738
Waller v. People 968, 1128, 1129
V. Ross 2509
V. U. S. 274, 278, 1938
Walnut Ridge M. Co. v. Cohn 1456
Walsh V. Board 718
Walston V. Allen 18, 21
Walter v. Calhoun 1280
V. Sperry 2103
Walter Cabinet Co. v. Russell 1210
Walters v. Rock 681, 688
Walton V. Burchel 2532
V. Draper 2471
V. State 1447, 1890
Wan Shing v. U. S. 1354
Ward V. Conklin 2408
V. Gay 2466
V. Merriam 2083
V. State 2570
Ware v. State 390
Warner v. Maine C. R. Co. 1078
V. Marshall , 2465, 2466, 2477
Warren v. Lucas 2271
SECTION
Warren v. Porter 251
V. State, 103 Ark. 1130
6 Okl. Cr. 20, 1398, 1405
Warren Construction Co. v. Powell 2498
Warren L. S. Co. v. Farr 15
Warrick v. Reinhardt 1706
V. State 111, 246, 248, 664, 1750
Warth V. Loewenstein ' 290, 1263, 2496
Warwick v. Hitchings 2433
Washburn v. R. Co. 2570
Washburn L. Co. v. Swanby 2165
Washington v. State
143 Ala 1339, 2016
124 Ga. 1263, 2060
Washington A. & M. V. R. Co. v.^
Lukens ' 678
Washington G. Co. v. State District 1387
Washington Nat'l Bank v. Daily 1859, 2192,
2193, 2259
Washington R. & E. Co. v. Wright 1750
Washington- Virginia R. Co. v. Bouk-
night 2509
Washoe Copper Co. v. Junila 261, 1082
Waterbury Nat'l Bank v. Reed 2579,
Waters v. Merrit P. Co. 2054
V. Phelps 2432
V. Waters 229, 1738, 2500
Waters-Pierce Oil Co. v. Deselms 2509,
2580
Watford v. Alabama & F. L. Co. 2536
Watkins ii. Cope 1856
V. Havighorst 1665
Watkins L. M. Co. «. Campbell 21, 714
Watson 11. Barnes 1880
<;. Bigelow Co. 451, 1072
V. Colusa P. M. & S. Co. 1943
V. Hinson 2452
V. Lamb 2465
V. State
Ala., 61 So. 1612, 2236
7 Okl. Cr. 987
Watts V. State
Ala. App., 63 So. 166, 988, 1154
99 Md. 860, 1938
Way V. Greer 2433
V. State 988
Waycaster v. State 1037
Weatherall v. Weatherall 2083
Weatherford v. Union P. R. Co. 18
Weaver v. State
139 Ala. 18
142 Ala. 2061
83 Ark. 2276
783
TABLE OF CASES CITED
SECTION
Weaver Mercantile Co. v. Thurmond 2509
Webb !). Gray 258, 406
V. Reynolds 1960
V. Ritter 411, 1378, 1573, 2520
V. State 2511
V. Webb 2520
Webb G. & C. Co. v. Boston & M. R.
Co. 1129
Weber v. Lape 615
Webster Coal & C. Co. v. Cassatt 1859
Wechsler v. U. S. 2281
Weckerly v. Taylor 2235
Weeks v. Boston El. R. Co. 1576, 1722
V. Hutchinson 18
V. U. S. 2183, 2264
Weibert v. Hanan 676
Weidenhoft v. Primm 1603
Weidner v. Standard L. & A. Ins. Co. 290
Weigand v. Rutschke 2336, 2408
Weil V. Quidnick Mfg. Co. 2416
Weir V. Long 2442
Weiss V. Kohlhagen 1062, 1961
Welborn v. Faulconer 1855
Welch V. Barnett 338
V. Com., Ill Ky. 987
Ky., 108 S. W. 216, 2276
V. State 1128
Weldon v. State 1761
Wellcome, re 1398
Wellmaker v. Wheatley 2465
Wells V. Com. 987
V. Chase 1330, 1669
V. Hays 1539, 1540
V. Terr.
14 Okl. 396, 1079
15 Okl. 624, 680
. «. Toogood ' 209,2374
V. Utah C. Co. 2509
Wells Whip Co. v. Tanners' M. F. Ins. Co. 1530
Wells & M. Council v. Littleton 2593
Welsbach Incand. G. L. Co. v. New
Sunlight I. Co. 1856
Welty V. State 2511
Wendling v. Bowden 987
Wenkowski ». Crivitz P. & P. Co. 282
Werner v. Marx 1676
Wesnieski v. Vanek 1058, 1066
West V. Houston Oil Co. 68, 1085
V. Louisiana 1398, 1404
West Pub. Co. ». Edward Thompson Co. 1079
West Seattle v. W. S. L. & I. Co. 2575
West Skokie Drainage District v.
Dawson 463, 961, 1908
784
. SECTION
West Virginia Architects & Builders
V. Stewart 1630, 1549
Wester v. State 7, 2239
Western Carolina Bank v. Moore 2444
Western Glass Mfg. Co. v. Schoeninger
2220
Western L. & S. Co. v. Waisman ' 2066
Western Mfg. Go. v. Cotton 2416
Western N. L. Ins. Co. v. Williamson
H. F. Co. 616, 2550
Western Travelers' Ace. Ass'n v.
Munson 1719, 2388
Western Union O. Co. v. Newlove 1021
Western Union Tel. Co. v. Hanley 1389
V. Long * 1966
V. Merrill 1951
V. Northcutt 2134
V. Ring 1943
V. Taggart 1360
Western W. S. Co. v. McMillen 2438
Westfall V. Wait 1738, 1890, 2494
Westheimer v. Habinck 2536
Westinghouse Machine Co. v. Electric
S. B. Co. 1412
Westlake v. Westlake 1730
Weston V. Teufel 1012, 1658, 2603
Wetzel V. Firebaugh 1911, 1958
Whalen v. Gleeson 2149 I
Wharton v. Tacoma F. D. Co. 1003
Wharton's Will , ' 233
Whatley ii. State " 860
Wheadon v. Turregano 2525
Wheaton v. Liverpool & L. & G. Ins.
Co. 2408
V. Pope 2474
Wheeler v. Com. Ill
V. Metrop. Stock Exchange 2406
V. Oregon R. & N. Co. 1461, 1760
Wheeling M. & F. Co. v. Wheeling
S. & I. Co. 1951
Wheelock's Will 582, 1671, 1739
Whidby v. State 2060
Whigby V. Burnham 2086
Whisner v. Whisner 1076, 1263, 1938
Whitaker v. State 2183
J). Thayer 704
V. Whitaker 1778
White V. Boston 1907
V. Com. 19
V. Credit Reform Ass'n 1866
V. Manter 1858
V. Poole 608
V. Southern R. Co. 18, 1760
TABLE OF CASES CITED
White V. State, 59 Fla.
4 Okl. Cr.
V. White
V. Willard
White's Goods
White's Succession
SECTION
21, 1732
247
1730, 2336, 2340
2408
2452
2008
White Star Mining Co. v. Hultberg 2358
A/Vhitehouse v. Whitehouse 2477
Whitehurst v. Atlantic C. L. R. Co. 456
V. Com: 1671
Whitelaw's Adm'r v. Whitelaw's
Adm'r 1081
Whiting, in re 569, 2328
V. Hoglund 2408
Whiting-Middleton C. Co. v. Preston 437
Whitney v. Dewey 2408
v. Hanington 2452
Whitt V. Com. 21, 1018
Whitten v. Western U. Tel. Co. 2219
Wichita F.&N.W.E. Co. s.HoIloman 1060
Wicker v. Jones 2525
Wickes V. Walden 2341
Wickham ». Torley 1876
Wicks V. Walden 2341
Wiers v. Treese 2438
Wiess V. Hall 1605
Wiggins V. State 398, 1761
Wikman's Estate 2148
Wilbur V. Grover 2420
V. Rhode Island Co. 2509
V. Selden 2405
Wilcox V. Bergman 1652, 1680
Wilder v. A. D. & R. E. Traction Co. 1662
V. Franklin's Ex'r 2054
V. Gr. Western C. Co. 461
Wilenou v. Handlon 2408
Wiley V. McBride 2235, 2337
V. State 2513
Wilkerson v. State 967, 987
Wilkie V. Chehalis Co. L. & T. Co. 41, 461
Wilkins V. Brock 1722
V. Somerville 2408
Wilkinson v. ^tna L. Ins. Co. 2510
«. People 1911
V. Service 1738, 2329
Willcox V. Priester 2433
WiUett V. Morse 18, 1873
Williams v. Behnont C. & C. Co. 20, 1750
V. Chicago R. I. & P. R. Co. 2433
V. Com. 1873
j>. Fourth Nat'l-B-k, 1354
V. Fulkes 682
V. Holbrook 458
SECTION
437, 438
2523
2446
1669, 2509
1750
2388, 2509
Williams v. Lansing
' V. Miles
V. National Cash R. Co.
V. Sleepy H. M. Co.
V. Southern R. Co.
V. Spokane P. & N. R. Co.
V. State
144 Ala. 987, 988, 2511
149 Ala. 2239
151 Ala. 2086
48 Fla. 851
123 Ga. 2073
168 Ind. 18, 1442, 1451
175 Ind. 2016
87 Miss. 2277
4 Okl. Cr. 363
52 Tex. Cr. 497
V. U. S. 934, 2272
V. Williams
20 Colo. 1730
221 III. 2165
V. Winthrop 252, 458
Williamson v. Musick 1351
V. U. S. 342
Williamson I. Co. v. McQueen 1950
Willis V. U. S. 1349
V. W. U. Tel. Co. 1978
V. Zorger 2498
Willoughby v. Queneby 2426
V. Terr. 1450
Wills V. Russell 1890
Wilmington S. Bank v. Waste 238, 2015
Wihnoth V. Hamilton 1873
V. Wheaton 1669
Wilson V. Braden 1573, 2105
V. Com. 1032
V. Gordon 2312
V. Hamette 1802, 1951
V. Jernigan 2494
V. Johnson 2494
V. MuUoney 2446
V. Ohio F. Ins. Co. 2271, 2327
V. Pritchett 18
V. Snow 1573, 2144
V. State
140 Ala. 1404
Ala., 39 So. 2446
138 Ga. ' 1354
175 Ind. 1398, 1405, 1807
87 Nebr. 987, 1853
49 Tex. Cr. 1447, 1751
.V. Terry 2054
785
TABLE OF CASES CITED
SECTION
SECTION
Wilson V. U. S.
Wood V. Holah
748
149 U. S.
1977, 2272
V. Le Blanc
1385
221 U. S.
2259
V. Metropolitan St. R. Co
, 1976
232 U. S.
934, 2497
V. Wilmington C. R. Co.
2509
V. Wilson
2520
V. Wood
2046
V. Wood
1244
Woodall V. State
1254
u. Young
74
Woodruff V. State 168, 205,
276, 398, 770,
Wilson's Estate
1938
1620
Wilson, Close & Co. i
. Pritchett
18, 2415,
Woods V. Dailey
933, 2498
2439
V. Faurot
1086, 1890
Wilson-Ward Co. v.
Farmers' U
G.
v. Lisbon
2389
Co.
2498
Woodson V. Beck
2436
Wiltse V. Fifield 2410
Wiltsey's Will 21, 1388, 1369, 1738
Wimberly v. State 1404
Winding Gulf C. Co. 11. Campbell 1956
Windsor v. St. Paul M. & M. R. Co. 2433
Winkleman v. White 382
Winn V. Cleveland C. C. & St. L. R.
Co. 1698
Wum V. Coggins 2579
V. Itzel 530, 1890, 2502
Winsky v. State 2081, 2513
Winslow V. Norfolk H. Co. 2509
V. Smith 2349, 2350
Winslow's Will 1554
Winston v. Winston 2060
Wipfler V. Wipfler 2408
Wipperman Merc. Co. v. Robbins 1779
Wirsching v. Grand Lodge 2416
Wisconsin Steel Co. v. Maryland Steel
Co. 1530
Wise V. Kerr Thread Co. 1681
Wisehart v. Applegate 582
Wistrand v. People 213 111. 222, 1168, 2072
218 111. 59, 2100
Withaup V. U. S. 6, 318, 2008, 2016
Withey v. Pere Marquette R. Co. 716, 1943
Witmer v. District Court 2195
Witty V. State 2501
Wixom V. Bixby 2354
Woburn Nat'l Bank v. Woods 2466
Wogan, re 5, 1382, 2218
Wolf V. Chicago S. P. Co. 2496
Wolfe V. N. B. Cordage Co. 1974
Wolters, ex p. 2195
V. Red ward 1195
Wolverine L. Co. v. Phoenix Ins. Co. 2465
Womble v. Merchants' G. Co. 2509
Wong Din v. U. S: 580, 2056
V. Custer 73
V. Dominion L. Co. 1856
Wood V. Etiwanda W. Co. 2327
Woodstock Iron Works v. Kline 1405
Woodvine v. Dean 7
Woodward v. Chicago M. & St. P. R.
Co. 2487, 2494
ex p. 1354, 1966
Woodward, in re 1644
Woodworth v. Detroit U. R. Co. 252, 458
Woody V. State 2081
Wooldridge v. State 276, 318, 704, 1254,
2015, 2016
Woolfolk V. Albrecht 1350
Wootton V. Sevier 1856
Worden v. Cole 2575
Worden L. & S. Co. v. MinneapoUs St.
P. & S. S. M. R. Co. 1639
Worman v. Seybert 1312, 1513
Worrell v. Kinnear 944, 2212
Worthington v. Elmer 2510
Worthy V. Jonesville Oil Mill 283
Wray v. Knoxville L. F. & J. R. Co. 1943,
2581
V. State 1390
Wrede v. Richardson 1350
Wrenn, in re 2421, 2463
Wright V. Anderson 2429
V. Chicago B. & Q. R. Co. 1555
V. Com. 196
V. Crane 660
V. Davis 93, 286
J). Hicks 166, 2063
». Hull 2139, 2517
V. Kansas City 987
V. Michigan C. R. Co. 1235
V. State
47 Tex. Cr. 2059
63 Tex. Cr. 987
Wrynn v. Downey 1770, 2061
Wiita V. Interstate Iron Co. 252
Wyatt V. Pacific Elec. R. Co. 2509
11. State ' 417
Wyckoff ». Chicago City R. Co. 2354
786
TABLE OF CASES CITED
SECTION
Wyman v. Lynde 75
Wynne v. U. S. 2166
Wysocki v. Wisconsin L. I. & C. Co. 1029
Yager v. Bruce 406
Yakima V. Bank v. McAllister 341
Yancy v. Waddell 1350
Yanelli v. Littlejohn 987
Yarber v. Chicago & A. R. Co. 20, 1951
Yardley v. State 2311
Yates V. Covington 252, 458
11. People 1064
V. Yates 2060
Yazoo & M. V. R. Co. v. Hughes 2508
V. Humplirey 2508
Yeatman v. Hart 1751
Yeiser v. Cathers 1236, 2154
Yellow P. L. Co. V. Ford 2536
Yellowstone P. R. Co. s. Bridger C.
Co. 463
Yeska V. Swendrzynski 1058
Yess V. Yess 2503
Yokell V. Elder 2450
Yore V. Newton 458, 1164
York V. Everton 923
Youlden v. London G. & A. Co. 1722
Young V. Chandler 2495
V. Corrigan 21, 75, 692
V. Hayes 2409
V. Kinney 457
Young V. McWilliams
V. People
V. State
122 Ga.
125 Ga.
V. Valentine
V. Welch Mfg. Co.
V. Woodman
Young's Estate
Younge v. Guilbeau
Younger ». Hehn
V. State
Yow V. Hamilton
SECTION
2408
1182, 1200, 1236
1820
1821
21, 1392, 1416
2195
2486
1738, 2314
2408, 2520
1350
1136, 2183
1564
Zarnik v. Reiss C. Co. 1951
Zdrahal v. Shatney 1644, 2085
Ziegenhagen's Will 2523
Ziehn v. United El. L. & P. Co. 283
Zimmer v. Fox River V. E. R. Co. 460
Zimmerle v. Childers 282
Zimmermann v. Brooks 2477
V. Freshour 2503
Zinsmeister v. Rock Island C. Co. 1770
Zipperian v. People 390, 1438, 1442, 2512
Zipperlen v. Southern Pac. Co. 905
Zobel V. Fanny Rawlings M. Co. 2595
Zucker v. Whitridge 97
Zuckerman v. People 861
Zych V. American Cai & F. Co. 1381,
1411
787
INDEX OF TOPICS
INDEX OF TOPICS
BY HARVEY C. VOORHEES, ESQ., OF THE BOSTON BAR
Refer also to complete table of contents, volume one, page xiii, or part thereof at
beginning of each volume, or at head of each chapter.
SCOPE NOTE. — The fact that in the older works on Evidence, such as those of Starkie
and Greenleaf, extra volumes were added to cover numerous points of substan-
tive law and procedure arising at trials in the shape of offers of evidence, should not
lead the practitioner to consult this work for such extraneous subjects. The bulk
of the modern law of Evidence, in the strict sense, makes their inclusion nowadays
impossible. In § 2 of this work will be found a further explanation of its scope.
For example, the question whether in burglary there must be ^' evidence " of an
entering of a dwelling house at night time is a question of the substantive criminal
law.
EXPLANATORY NOTE. — Indexed section numbers in plain figures, thus: 1678,
mean that the matter referred to will be found in the main treatise only. If pre-
ceded by letter " s," thus: s 1678, the matter referred to will be found in both main
treatise and supplemental volume. If in italic figures, thus: 1678, the matter wiU
be found in the supplemental volume only.
A
[Figures set thxis : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to both.]
Abbreviations; see Initials. Section
Abduction, what is corroborative evidence in note three 2062
Ability, to do an act s 83-89, s 221
Abortion, procuring of, as evidence of paternity s 282
other offences, as evidence of intent s 359
motive for ..'..... s 391
reputation of place of procuring s 391
dsdng declarations of woman in S 1432
who is aceomphee in s 2060
what is corroborative evidence in note three 2062
marital pri\'ilege in s 2239
request to commit, not privileged note two s 2385
Absence of entry or record, how proved . . s 1230, s 1244, s 1678, s 1957, s 1978
of maker of regular entries s 1521, s 1561
of deponent s 1404
of declarant of facts against interest s 1456
of pedigree declarant s 1481
presumption of death from s 2531
Absent Witness, testimony of, based on personal observation 670
expected testimony of, received to avoid postponement 807, s 1398
impeached like others 888, s 1034
testimony at a former trial; see Pormeb Testimony.
effect of admission of affidavit of s 2595
see also Witness, XII.
791
INDEX OF TOPICS '
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Abstract, of burnt records 1227, s 1267, s 1706, s 2105, 2107
not preferred to extract note six 1273
of copy, in general 1282
Abstract of Title-deeds, production of original ^. s 1223
as hearsay ; S 1705
as giving substance of deed s 2105
whether preferred to oral testimony s 1273
Acceptance; see Bill of Exchange.
Accessory; see Accomplice.
Accident, cause of, as evidenced by its effects s 437-461
insurance against, as evidence of negligence s 282, s 393, s 949, s 969
see also Negligence; Intent; Highway; Machine; Premises; Cor-
poral Injury; Res Gest^e.
Accomplice, as disquaUfled by his guilt s 526
as disquahfled by interest s 580
as impeached s 967
moral character of, admissible against principal 68
Confession of principal used in trial of s 1079
confession of crime by, as hearsay s 1476, 1477
corroboration required s 2056
policy of the rule s 2057
kind of crime affected by the rule 2058
nature of corroborative evidence required s 2059
who is an accomplice s 2060
in sexual crimes s 2060
in abortion .... s 2060
woman not, in rape s 2060
pretended confederate as s 2060
other participator in bribery or subornation not an . . . note one s 2060
thief not, in receipt of stolen goods note one s 2060
burden of proving an ... s 2060
restoring credit by consistent statements s 1128
as affected by judgment of conviction of principal s 1389
see also Co-indictee.
Accbunt, voluminous, proved by summary s 1230, s 1244
stated, original document in s 1235
stated, as embodying an agreement s 1071
assented to, as an admission . > S 1070
rendered, as an admission s 1073
Account-books; see Books op Account.
Accused; see Defendant.
Acknowledgment of deed of married woman; see Wife.
of deeds in general, whether certificate is conclusive s 1347, s 1352
whether admissible s 1676
Aconite; see Poison.
Act, character affecting the doing of an 55
ability to do an s 83-89, s 221
done, evidenced by course of business 92
one criminal, not evidence of another 192
evidential facts arising before an s 51-119
concurrent with an s 130-144
after an s 148-177
reason for an s 1729
scope of term note one 1772
made voidable by duress s 2423
of the Legislature; see Statute; Legislative Journal; Recital.
see also Pakticulab Acts; Similar Acts; Parol Evidence Rule.
Actinfr, expressing testimony by s 789
Adjournment of Court, for a view 1803
792
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to botli.]
Section
Adjournment of Court (continued).
as affecting publicity of trial s 1835
Admimstrative offioer, conclusiveness of eertifleate of s 1354
Administrator, admissions of s 1076, s 1081
see also Will; Executob.
Admiralty, rules of evidence applicable in s 6
seal of foreign court of, presumed genuine s 1681, s 2164
nautical expert witnesses not allowed in ■ . . . 56S
Admissibility, general theory of 9, 10
distinguished from materiality 2
relevancy 12
proof or weight 12
multiple, of the same fact for several purposes, although inadmissible for another 13,
215, s 216
conditional, of a fact not yet appearing relevant 14, 40, 304, s 1871
curative s 15
judicial discretion as applied to s 16
procedure on questions of s 17
objection to, time and form of s 18
judge to determine s 2550
external conditions as aflfecting 442
Admissions of a Party
1. Whether admissible
2. Whether sufficient
3. Sundries
1. Whether admissible
general theory s 1048-1058
not necessarily against interest s 1048, s 1049
distinguished from hearsay exception 816, s 1049
confessions 816, 1050
testimonial contradiction s 1051
conduct indicating guilt 1052
estoppel s 1056, s 1058, 2589
death not necessary s 1049
distinction between arbitration and s 1056
quasi and solemn 1057
under duress 1050
receipt as 156
prior question not necessary s 1051
cannot be by conduct 267, 1052
personal knowledge; infants s 1053
as insufficient proof s 1055
made to third persons , s 1056
not conclusive s 1058, 2588, s 2590
putting in the whole s 1058, s 2097, s 2099
implied admissions 267, s 1060
offer of compromise s 1061
in pleadings s 1063, s 1067
limitations on admissions by attorney s 1063
bills and answers in equity 1065, s 1076
by reference to a third person s 1070
by assenting to an account s 1070
by flight, concealment, etc s 273-284
by silence in general 292, 1052, s 1071
silence in specific situations s 1072
collateral facts involved in party's silence s 1072
by failure to produce evidence s 285-292
to reply to a letter s 1073
of sending or receiving letters note one s SI 53
793
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Admissions of a Party {continued).
by rendering an account 1073
in a third person's document s 1073
corporation books s 1074, s 1076
affidavits and depositions used s 1075
by adopting statement of third person s 1075
husband or wife s 1078, s 1086, s 2232
other parties to the cause s 1076
administrator s 1076, s 1081
injured person S 1076
co-defendant, etc s 1076
guardian 1076
guardian ad litem 1063
privies in obUgation : . . . s 1077, 1079
joint promisor s 1077
agent s 1078, 1797
partner S 1078
attorney s 1078
deputy-sheriff s 1078
interpreter s 1078
spouse s 1078
co-conspirator s 1079, 1797
joint tortfeasor s 1079
privies in title S 1080-1087
decedent s 1081
insurer as real plaintiflf note six 1081
insured S 1081
bankrupt s 1081
co-legatee s 1081
co-executor S 1081
grantor s 1082-1087
assignor s 1082-1087
indorser s 1082-1087
transfers in fraud of creditors V S 1082-1087
after transfer s 1085
as assignor of chose in action \- . . . s 1082
to bill of exchange 1084
vendor of personality, under New York rule s 1083
Massachusetts rule s 1083
as applied to negotiable instruments 1084
producing the original of a document admitted correct ... s 1235, 1255
books of bank as s 1235
assessor's books as s 1640
after deU very, in advancement to a child note three 1777
made during possession of land s 1778, s 1779
on cross-examination as to " understanding " note two s 1969
2. Whether sufficient
loss of a document 1054, s 1196
contents of a document ' 1054, 1255
by failure to object to document note twenty-seven 18
dispensing with the attesting witness s 1300
specimens of handwriting . ' 2013, s 2021
divorce charge s 2067
accused in general 816, 2070
bigamy, adultery, etc s 2086
of marriage, in civil cases s 2086
execution of a document s 2132, s 2596
3. Sundries
distinguished from estoppel, etc s 1056, s 1058, 2589
794
INDEX OF TOPICS
[Figures set thua: 1678 refer to~main treatise; 1878 (italics) refer to supplement; s 1678 refer to both.]
Section
Admissions of a Party {continued).
hypothetical s 1061
independent, of a fact s 1062
by another not a party s 1069 et seq.
before grand jury, not privileged s 2363
interpreter as agent to make 668, s 1077
of genuineness of a writing, as qualifying a witness . 700
by plea of guilty, admissible in a civil case s 815
distinguished from confessions 816
from judicial admissions 2588
of agent, as res gesim , 1797
by predecessor in title 336
of a third person, as to facts against interest s 1458
in a party's books of account s 1557
marriage certificate as s 1645
of execution of recorded deed s 1653
of a trust in Texas, two witnesses s 2054
decedent's oral, not sufficient to establish claim against his estate note four 2054
meaning of, may be explained 1972
whole must be proved s 2097, s 2098, s 2099
may be proved s 2115, s 2119
answer in equality used as 1065, 1076,^2121, s 2122
separate utterances excluded .s2119
by express stipulation; see Judicial Admission.
[Examine analysis of " Admissions," Vol. II, p. 1216.]
Adaption of child; see Family History.
of statement, as an admission s 1075
Adultery, character of third person as evidence s 68
intercourse with third persons, as evidencing paternity s 133, 134
on charge of, previous acts with others immaterial note six s 205
venereal disease, as evidence of s 168
plan, as evidence ,of S 238, note one 239
sexual desire as evidencing 400
other offences, as evidence of intent or motive 360, s 398
privilege, husband or wife s 2235, s 2239
against self-crimination in s 2257
proof beyond a reasonable doubt s 2498
who is accomplice in s 2060
confession of respondent in S 2067, 2074
eye-witness of marriage in s 2085, s 2086
admissions in s 2086
marriage celebrant's certificate not preferred to eye-witness s 2088
during period of gestation inadmissible note three S6Z7
Advancement to Child, shown by words accompanying transfer .... s 1777
declarations after delivery, as admission note three 1777
parol evidence to rebut presumed intent s 2475
presumption of S 2626
Adverse Possession; see Possession.
Advertisement, in newspaper, as evidencing knowledge s 255
see also Notice.
Affection; see Criminal Conversation; Alienation of Affections; Mental
Condition, Statements op; Breach op Promise.
Affidavit, in interlocutory proceedings s 4
whether lex fori is applicable to the taking of s 5
satisfies witness-rule as to number 1305
excluded at common law s 1384, 1708
exceptions 1709
admissible by statute . . . ' s 1710
of a third person, as an admission s 1075
795
INDEX OF TOPICS
[Figuiea set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Affidavit {continued).
of common source of title s 1385
of attesting witness to will S 1312
of party, to loss of document S 1196
filed original, required 1216
jurat as evidence of s 1676
of juror impeaching verdict . . \ 2348
of absent witness' testimony admitted S 2595
of denial of document's genuineness S 2596
presumed genuine, in official files s 2158
from identity of name s 2529
Affirmation; see Oath.
Against Interest, statements of facts
admissions not necessarily s 1048, s 1049
exception to the Hearsay rule 1455
witness unavailable from death, absence, insanity s 1456
receipt for money s 1456, s 1460
admissions of third persons s 1458
proprietary interest . . S 1458
landlord and tenant 1473
pecuniary interest s 1460
indorsements, receipts s 1460, s 1466
sundry interests s 1461-1463
the fact, not statement, to be .... > 1462
penal interest ; confession of crime s 1476
no motive to misrepresent S 1464
debit and credit entries s 1464
subsequent and separate entries excluded s 1465
statement, admissible for all facts stated s 1465
time of statement s 1466, 1467
mode of proof - . . 1468, 1469
statement, may be oral or written 1469
death or absence of declarant S 1456
testimonial qualifications of declarant 1471
authentication of statement 1472
distinction between statements, admissions, and confessions 1475
[Examine analysis of '■' Statements of Facts against Interest," Vol. II,
p. 1820.]
Age, as affecting an infant's disqualification S 506
as evidenced by appearance . 222, s 257, s 660, s 1154, s 1168
of a witness, as impeaching him s 934, note six 1005
of defendant may be part of corpus delicti note five S07S
of a person incapable of child-bearing s 2528
of a document; see Execution of Documents.
as excusing absence of attesting witness 1315
of deponent 1406
statement of age, as hearsay; see Family History.
testimony to one's own s 667
Aged Witness, deposition may be taken 1406
Age of Consent in rape, consent immaterial 402
appearance, to evidence s 1154
woman not aocompUce, in rape under s 2060
Agency, course of business in, as evidence of a transaction . . 94, 372, s 377, 379
admission of, by silence note eleven 1072
proof of, without producing instrument s 1249
words accompanying acts to determine . . ■ s 1777
opinion testimony to s 1960
no presumption of authority upon proof of signature note one 21 34
proof of authority to execute ancient deed 2144
796
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; ^ 1678 refer to both.]
Section
Agency (continued).
presumption of continuance of .... s 2530
see also Agent.
Agent, fraud by, as evidence of party's guilt s 280
disqualification of opponent as witness to a transaction with a deceased . s 578,
s 1576, s 2065
wife or husband testifjring to acts as agent s 616
offer of compromise by s 1061
admissions by, in general s 1078
as res gestae 1797
notice to produce to s 1208
words accompanying acts as S 1777
privileged communications of 2301, s 2317
parol agreement to hold only as s 2438
personal habihty of one who signs as s 2444
authority to execute not presumed 2520
see also Agency.
Agreement, collateral, shown by parol 2435, note one s 2441, s 2442
novation, alteration, waiver S 2441
subsequent agreements s 2441
affecting express terms of document s 2444
affecting implied terms of document s 2445
see also Contract; Assent; Document; Parol Evidence Rule; Col-
lateral Agreements.
Alcohol; see Liquor.
Alibi, mode of evidencing 136
in civil cases 136
perjury or subornation in proving s 279
failure to prove, as evidence of guilt s 279
'burden of proof of s 2512
Alien, disqualification as a witness s 516
necessity of interpreter s 811
qualifications of interpreter S 571
credibility impeached by showing his acquaintance with the language of the
forum lOOB
by his race 936
conclusiveness of immigration-inspector's certificate s 1354
adequacy of cross-examination in foreign language s 1393
see also Race; Interpreter; Oath.
Alienation of Affections, expressions of husband or wife showing feelings . . s 1730
character of wife, as cause for cessation of affection in s 391
marital privilege in s 2239
see also Criminal Conversation.
Allegans suam turpitudinem, as excluding testimony s 525-531
Almanac, used in evidence s 1698
judicially noticed 2566
Alteration, of entries, fraudulent intent in; see Fraud.
expert witness to s 570, 2027
shown by parol S 2441, s 2455
as avoiding an instrument 1198
liability on altered document 2419
affecting liability of signer note two 2134
time of, presumed s 2525
Ambiguity in a document s 2472
latent, in a will note two s 2471, s 2472
Ambiguous Question; see Question to a Witness.
Ambassador, deposition of s 1384, 1407
privilege of 2372
Amendment; see Fourth Amendment.
797
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Analytic Rules defined , 1172
Ancestors, insanity of ^ as evidence s 232
expectation of life evidenced by long life of note two 223
declarations of, as evidence; see Family Histoby; Admissions.
Ancient Boundaxy; see Bound akies.
Ancient Document, as evidence of possession of land s 157
calling the attesting witness to s 1311
lost original S 2143
proof of genuineness; see Execution of Documents.
Ancient Writings; see Wkiting.
Animal, character of, as evidence s 68, s 201, s 1621
trespass of another, as evidence 142
brands on, as evidence s 150, s 1647, s 2152
conduct of, as evidence of ownership or crime S 177, s 1154
as evidence of the animal's disposition s 201
bloodhound in tracking accused . . s 177
precautions taken with, to show knowledge of viciousness ... . . s 282
symptoms of injury, etc., as evidence of cause . . s 457
fright of, as evidence of dangerous object . . . s 461
cruelty of treatment, as affected by other like methods s 461
proof of owner's knowledge of viciousness s 251, s 282
injuries to, as evidencing a highway defect S 458
condition at other times, as evidence S 437
produced before the jury s 1154, s 1161
disposition or pedigree of, evidenced by reputation s 1621
corporal traits of, to evidence pedigree note one 167
state of mind of, Alabama doctrine note one 1966
printed stock-book, to prove pedigree S 1706
personal knowledge, to evidence dispositipn note four 1984
value of; see Value.
Anonymous crimes, as evidence of intent 303
Answer of Witness, to a leading question s 772
non-responsive s 785, s 1392
prepared beforehand, in a deposition 787
by reference to other testimony 787
see also Question; Examination; Objection.
Answer in Chancery, as a party's admission 1065, s 1076, 2121, s 2122
original's production not required s 1215, 1216
giving discovery, scope of; see Discovery.
proof of biU and answer together 2111
responsive parts are evidence 2121
New York rule s 2123
presumed genuine, in official files s 2158
from identity of name s 2529
Apparatus, possession of, as evidence of a crime 88, s 238
defects of, as evidence of neghgence s 441-461
Appeal, evidence excluded because not transmissible on s 1168
on interlocutory judicial order . . -. note six 2270
record of preliminary probate, not evidence on 1658
Appearance
as evidence of age 222, s 257, s 660, s 1154, s 1168
intoxication s 235, s 660, s 1154
competence as workman S 1154
health s 223
identity s 660, s 1154
lunacy s 1154, 1160
paternity S 1168
of wound, to indicate distance of assailant s 457
as affected by opinion rule s 1974
798
INDEX OF TOPICS
[Figures set thus: 1678 refer to maia treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Appliances; see Machine.
Appointment, to office, production of original 1228
of officer, presumed s 2535
Appraiser, report of an s 1672
Approval of bill by governor, whether journals of legislature can be used to prove
1350
Arbitration, distinguished from an admission s 1056
Arbitrator, former testimony before, whether admissible s 1373
award in another cause, as reputation 1594
as a witness 1912
not to impeach award s 2358
misconduct of, to invalidate award s 2358
distinction between general and special submissions ..... note one 2358
Argument, distinguished from evidence 1, 1806
form of, is inductive .- . . 30
practical r-equirements of the 31
case stated for s 1066
improper statements by counsel in 1806
offering evidence after argument begun s 1878
Arrest, belief of officer as to probable cause s 258
conduct under, as evidence of guilt s 273, s 1072
resistance to, as evidence of guilt s 276
submission to, as evidence of innocence s 293
confession made under s 851
impeachment of a witness by s 980, 982
silence under, as an admission s 1072
immunity of witness from s 2195
Arsenic; see Poison.
Arson, threats as evidence of s 105-109
materials and tools, as evidence of s 149, s 238
other offences, as evidence of intent s 354
motive for, as shown by circumstances s 391, s 392
as shown by conduct note five s 396
proof beyond reasonable doubt, in insurance s 2498
see also Insueance.
Assault, similar acts to show intent in s 364, 396
see also Rape; Indecent Assault; Homicide.
Assent, shown by parol evidence; see Parol Evidence Rule.
see also Contbact.
Assessment, privilege against disclosure of s 2374
Assessor's Books, production of original s 1240
admissible as official records or as admissions s 1640
admissible to prove occupancy s 1640
ownership . . , s 1640
property value .... ■ s 1640
lack of property s 1640
by statute ; . . . note nine s 1640
copy of whole required ^ 2109
Assignee in bankruptcy; see Bankrupt.
Assignment, of patent of invention s 1226
record of s 1657
Assignor, admissions of, against assignee s 1082
see also Vendor.
Assumpsit; see Contract; Bill of Exchange; Loan; Note.
Asylum; see Sanity.
Atheism; see Religious Belief; Witness.
Attachment, debtor's admissions made after attachment ; see Admissions.
Attendance as witness; see Witness, IX.
Attested Copy; see Certified Copy.
799
INDEX OF TOPICS
IFigures set thiia : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Attesting Witness
1. Rule requiring attesting witness to he called ^
2. Rule permitting attestation to be evidence
3. Sundries
1. Rule requiring attesting witness to be called
Hstory of the rule 1287
kind of document s 1290
document collaterally in issue , . . 1291
who is an attesting witness s 1292
of&cial signature is not of s 1292
signing subsequent to execution s 1292
document used for others 1293
execution not disputable because of estoppel, admission, etc. . . s 1294-1298
attester preferred to miaker s 1299
attester preferred to admissions s 1300
to opponent's testimony 1301
attestor denying or not recollecting s 1302, s 1303
other witnesses not excluded s 1302, s 1303
Illinois rule admitting only, in probate s 1303
number of attestors required to be called S 1304, 2049
affldavit or deposition satisfies witness-rule 1305
number of signatures to be proved
of attesters 1306
of maker s 1320
proof of signature dispensed with 1321
excuses for not calling the attester 1308, 1319
death s 1311
ancient document S 1311, s 2138
absence from jurisdiction s 1312
proponent's knowledge of intended absence of s 1312
effort to secure deposition of absent s 1312
inability to find s 1313
name unknown 1314
age 1315
illness 1315
imprisonment " 1315
loss of memory 1315
incompetence by interest, etc s 1316
production of, excused for blindness S 1316
refusal to testify 1317
privilege from testifying 1317
copy of recorded document 1318
2. Rule permitting attestation to be evidence
exception to the Hearsay rule 1505
attester must be deceased, etc .... 1606
who is an attester 1509, s 1510
must be competent at time of attestation s 582, s 1510
implied purport of attestation s 1511, s 1512
proof of maker's signature also 1513
attester may be impeached or supported 1514
using the depositions given at preliminary probate s 1417
prima facie effect of note two s 2500
3. Sundries
disqualified by confession of falsehood s 628
by interest 583
testifying without recollection s 747
may be impeached by proponent 917
by self-contradiction s 1033
illiterate person as, by his mark 1S9S
800
INDEX OF TOPICS
IFigures set thus: 1678 refer to main treatise; 1678 (italioa) refer to supplement; S 1678 refer to both.]
Attesting Witness (continued).
opinion to sanity 1936
privilege of attorney, as attester .' .' . . s 2315, s 2329
of physician ' s 2390
parol evidence to explain signature of s 2406
attestation as a required formality 2456
[Examine analysis of " Preference for an Attesting Witness," Vol. 11, '
p. 1564.]
Attorney, testimony to value of services of s 715, note one a 1944
improper consultation with witness before trial 788
offer of compromise by g 1061
pleading drafted by, as an admission s 1063, s 1067
admissions by, in general s 1063, s 1078
judicial admissions 2594
competency as a witness g ign
notes of testimony taken by s 1669
consultation with sequestered witness s 1840
exclusion from court while a witness s 1841
going over to service of opponent, restrained note two 2323
statement of, that matter is privileged note three 2322
ofi&ce of, judicially noticed s 2578
power of; see Agency.
privilege of, as attesting witness s 2315, s 2329
privileged communications of ; see Attorney and Client.
see also Counsel.
Attorney and Client, Conununications between,
history and poUey of the privilege 2290, 2291
statutes s 2292
irrespective of litigation 2294
non-legal purposes , s 2296
proseciuting attorneys s 2296
conveyancing s 2297
wills s 2297
criminal transaction 2298
protects past but not future wrongdoing 2298
persons not attorneys s 2300
attorneys' clerks and agents 2301
client's belief 2302
attorney as a friend s 2303
casual consultation ' s 2303
time of consultation s 2304
communications made during negotiation of relation s 2304
communications, not conduct s 2306
documents s 2307-2309, 2318
distinction between pre-existing and subsequently drawn documents . . s 2307
production of documents s 2307
contents of pre-existing document , 2308
signing of note or receipt, not privileged s 2309
relevancy of communication s 2310
separation of privileged from unprivileged note one s 2310
confidential nature s 2311
third person present . s 2311
joint attorney; opponent's presence s 2312
identity of client s 2313
purpose of suit s 2313
execution and contents of will or deed s 2314
temporary confidentiality s 2314
attorney as attesting witness s 2315
question of fact, who is the client note one 3 2317
801
INDEX OP TOPICS
[Figures set thus : 1678 refer to main treatise ; 1878 (italics) refer to supplement ; S 1678 refer to both.}
Section
Attorney and Client, Communications between (continued).
if through interpreter is privileged note two 2317
communications by third persons S 2317
client's agents s 2317
client's documents 2318
reports by medical agent note one s 2319
reports of accidents . . . . i note one s 2319
depositions for purpose of litigation note one s 2319
short-hand notes note one s 2319
attorney's communications 2320
privilege is the client's 2321
who may claim 2321
inference from claim 2322
attorney's statement that matter is privileged note three 2322
Attorney and Client, Communications between (continued).
termination of client's relation 2323
indirect disclosure by attorney S 2325
third person overhearing s 2326
waiver by testifying s 2327
by agent or assignee S 2328
by deceased client's representative . s 2329
[Examine analysis of " Communications between Attorney and Client,"
Vol. IV, p. 3193.]
Auctioneer, statement of, varying printed catalogue note one 2442
Auditor, findings of an s 1672
Authentic Acts, in Louisiana law, evidence of ISSS
Authentication of a document; see Execution; Cbbtipied Copt.
Authority as agent; see Agency.
opinion testimony to . . s 1960
person in, obtaining a confession ; see Confession.
to certify copy 1677
of oflcer, presumed s 2535
judicially noticed 2576
Author, shown to be an authority 1694
Authorship, of letter, evidenced by faulty impression of typewriter . . note one 149
receipt of letter, as evidence of s 2519
individuality of expression, to show, in anonymous letter .... note three 87
traits of spelling, as evidence of 99
Automobile, by statute, tag prima facie evidence of ownership and operation
note four 150
chauffeur's statement of own responsibihty admitted note two IO4I
driver of, compellable to disclose name, etc SS64
Autopsy, of corpse, to obtain evidence, 186$, 2194, 22W
Autoptic Preference; see Real Evidence.
Average, impeaching a verdict determined by s 2354
Award; see Akbitratob.
B
Bailee, loss by, presumed negligent s 2508
speedy complaint by, of robbery 1142
document deposited with, as original 1231, s 1235
Ballot, production of origins^l s 1240
disclosure of, privileged s 2215
destruction of, unopened s 2215
mistake shown by parol s 2421
must be in writing s 2452
Bank, books of, original required s 1223
books of, as an admission s 1235
802
INDEX OF TOPICS
iFigures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to both.]
T. 1 / . . ,v Section
BanK {continued).
incorporation of, proved by repute s 1625
attested copy admitted s 1683, s 1710
see also Books op Account.
Bank-note, forgery of, as evidence of intent s 318
expert witness to, qualifications of s 570, 705
person whose name is forged, not a preferred witness s 1339
Bank-oflScer, as an expert witness to genuineness of notes s 570 :
not a preferred witness s 1339
prima facie evidence of knowledge of insolvency s 1354
communications to, not privileged . s 2286
Bankrupt, admissions of s 1081, s 1082, s 1086
answer '■' not in," at residence, as act of bankruptcy note eight 1770
declarations of intent by 1728, 1783
privilege of husband or wife of s 2235
against self-crimination by s 2257, s 2260, note five s 2282
Barrator, other acts, to evidence a common s 203
Bastardy, third person's character, as evidence s 68
third person's intercourse, as evidence s 133
resemblance of child, as evidence of paternity .... s 166, s 1154, s 1168
notorious reputation of putative father's recognition . . S 70, note three 1605
procurement of abortion, as evidence of paternity s 282
sexual desire as evidencing 401
prior intercourse, as evidence of motive S 398
mother's complaint in travail s 1141, 1763
uncorroborated complainant in s 2061
using the mother's examination s 1417
family hearsay as evidence S 1492
parent's testimony to s 2063
proof beyond a reasonable doubt s 2498
presumption of legitimacy in s 2527 ,
see also Father; Legitimacy; Mother.
Battery, plaintiff's reputed good character in note one 76
see also Homicide; Schoolmaster.
Beer, meaning of, judicially noticed s 2582
Belief, testifying to one's own belief or intent s 581 ;
behef as distinguished from knowledge 658
testifying to another person's belief or intent s 661
belief in genuineness of handwriting 698
belief or impression, as showing sufficient memory 726
conduct and cinjumstances as evidence of; see Knowledge.
Belladonna; see Poison.
Beneficiary of insurance; see Insurance.
Best Evidence, history and meaning 1173-1175, 1286
rule for producing originals; see Original Document.
rule for attesting witness; see Attesting Witness. "•
rule against hearsay; see Hearsay Rule.
official documents as best eVidence s 1335
Bias, securing experts without ^ ^°2
former hostiUty to show 396
impeaching one's own witness by proof of s 901
instruction to jury on witness' note one 940
mode of evidencing, in general • „f„" ,„*^
witness may state whether he has 940, note three 948, s 1963
eflfect of witness admitting ""'olo''*^ qrq
relationship, employment, etc s 949, s 969
evidenced by pecuniary relations note three 949
detective impeached for ncn ^7qn
expressions and conduct ^ 950, s 1730
803
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Bias, details of a quarrel s 951
preliminary inquiry S 953
contradiction by other witnesses s 1005, S 1022
restoring credit by consistent statements S 1128
excluding evidence for possible 1484
see also Interest; Corrtiption.
Bible, as evidence of pedigree; see Family HipTORT.
Bigamy, other offences, as evidence of intent or motive 360, s 398
disqualifying the wife as witness . . . s 605
reputation evidence insufficient to prove S 1604
eye-witness of marriage required s 1604, s 2085
admissions of defendant sufficient s 2086
marriage oelebrajit's pertiflcate not preferred to eye-witness S 2088
proof by husband or wife, privileged s 2231
vaUd marriage presumed s 2506
Bilateral Acts; see Parol Evidence Rule, B.
Bill in Chancery, as a party's admission 1065
must be read with the answer 2111
see also Chancery.
Bill of Discovery; see Discovery.
Bill of Exceptions, must exhibit grounds of objection s 17, s 18
as evidence of former testimony 1668
Bill of Exchange, evidence of forgery of; see Forgery.
authority to accept, other transactions as evidence of S 377
impeaching one's own instrument 529
admission of parties to 1084
production of original; see Original Document.
indorsement on, as statement against interest s 1460, s 1466
delivery in escrow, shown by parol s 2409, s 2420
collateral agreement, shown by parol s 2443-2445
signed by mistake S 2415-2419
parol acceptance s 2451
presumption of title from possession of , S 2516
of payment s 2517, s 2518
protest of, as evidence; see Notary.
Bill of Lading, assent presumed s 2537
shown by parol s 2415
terms varied by parol s 2432
presumption of excepted loss in s 2509, note two 2537
see also Contract.
BUI of Legislature ; see Statute; Legislative Journal.
BUI of Particulars, to avoid unfair surprise 1848
Birth, register of; see Register op Marriage, Birth, and Death.
date of; see Age.
d.eelaration of, by deceased person; see Family History.
reputation of S 1605
see also Race.
Birthmark, as evidence of events in pregnancy s 168
Black; see Race.
Blackmail, impeaching a lyitaess by evidence of s 963
other offences as evidence of intent 352
Blank, delivery of document having a s 2410, 2419
interpretation of a s 2473
indorsement in s 2445
Blindness, as disqualifying a witness s 500
as excusing production of attesting witness S 1316
as needing an interpreter 3 811, 1S93
Blockade by belligerent, evidence of intent to evade s 367
Blood, witness' experience with, as qualifying him s 568
804
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.)
Section
Blood, opinion testimony to /. . s 1975, s 1977
explaining away traces of 34, s 149
absence of, stains s 149
Bloodhound, use of, in tracking an accused s 177
character or conduct of ; see Dog; Animal.
Blotter-press copies, as originals ■ s 1234
Bodily Injury; see'CoRPOBAL Injury.
Body, inspection of 1155, s 1158, s 2194, 2216, s 2220, s 2265
Bona Fides; see Knowledge; Motive; Intent.
Bond, proof of execution of; see Execution of Document.
as impeaching the obligor-witness S 969
production of original; see Original Document.
as part of the court files s 1215
indorsement on, as statement against interest s 1460, s 1466
Bookkeeper, entries of; see Regulab Entries.
aiding recollection by entries; see Recollection.
Books of science, used in evidence s 1690-1700
of election as evidence s 1640
of history, used in evidence 1597, 1690, 1699
of partnership presumed correct note two 2537
see also Document; Books op Account; Printed Matter; Learned
Treatises.
Books of Account,' wife of party as witness to s 612
used to aid recollection; see Recollection.
of a bank, original required s 1223
of parties or deceased persons, as hearsay; see Regular Entries.
distinguished from records of corporation 1661
6f a corporation or partnership, as admissions s 1074, s 1557
production of original s 1223
offered by surviving party against deceased opponent s 1554
use of, by representative of deceased party, not a waiver to opponent's tes-
timony s 1554
admissions in, to impeach evidence s 1657
parol evidence rule not applicable to 1668
inspection of, before trial; see Discovery.
putting in the whole s 2118
entries made in, after suit begun, excluded note one 2118
making evidence by inspection 2125
privileged from production s 2193, 2205, s 2286
see also Original Document.
Borrowing; see Loan; Debtor.
Boundaries, evidenced by possession 378
surveyor's testimony not required s 1339
evidenced by perambulations 1563
deceased persons' declarations
exception to Hearsay rule 1563, s 1564
Massachusetts doctrine 1563, note seven 1567
death of declarant 1565
insanity, etc., not sufficient 1565
no interest to misrepresent s 1566
owner's declarations s 1566
declarations on the land s 1567, 1764
declarant's knowledge 1568
maps, surveys .... 1570
opinion testimony to s 1963
ancient deed-recital of s 1573
reputation about
must be question of past generation s 1582
kind of reputation s 1583-1591
805
INDEX OF TOPICS
[Figiires set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Boundaries {continued).
must be more than individual assertion s 1584
must be of right itself and not of specific instance 1585
must relate to matter of geHeral interest s 1586
application of reputation rule to private s 1587
form of reputation '. 1592-1595
official surveys, to prove S 1665
of county or town, judicially noticed s 2575
Boycott, statements concerning note two 1729
Brands on animals, or timber, as evidence of ownership s 150, s 2152
proving genuineness of . s 2152
register of s 150, s 1647
unrecorded, to evidence ownership note two 160
Breach of Promise of marriage,
character of plaintiff as in issue or mitigating damages s 75, 77
acts of unchastity, as excusing or mitigating 206, 213
prior relations, as evidence s 398
state of affection inferable in 401
defendant's wealth, provable by repute s 1623
plaintiff's conduct, as res gestce s 1770
seduction not evidence of prior promise of marriage note three 1770
opinion testimony to damages by note one 1944
uncorroborated complainant in s 2061
circumstantial evidence sufficient 2090
Bribery, by a party, as evidence of guilt s 278
other offences, as evidencing intent s 343
offer of money to injured party in criminal prosecution not . . . S79, lOBS
used to impeach one's own witness S'901'
attempt to, as impeaching a witness 960, 962
contradiction as to, not collateral s 1005, s 1022
who is an acoompUce in .- note one 2060
Bridge, defective; see Highway.
refuting evidence of injury caused by vibration of 34, 35
standard of conduct of employee on s 461
Brief of Evidence, to prove former testimony 1668
Biulding, other injtiries to s 451
see also Premises.
Bullet, shown to fit gun of accused S 149
Burden of Proof, and Presumptions
1. General Principles
(a) burden of proof
(b) presumptions
(c) prima facie evidence
(d) measure of persuasion
2. Burdens and Presumptiofls in Specific Issues
(a) sanity
(b) undue influence and fraud
(e) marriage
(d) negligence and accident
(e) crimes
(f) ownership
(g) payment
(h) execution and contents of document
(i) gifts
(j) miscellaneous
1. General Principles
production of evidence by the parties 2483
evidence sought by the judge ex mero motu; questions to witnesses by
the judge s 2484
806
INDEX OF TOPICS
IFigurea set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Burden of Proof, and Presmnptions {continued) .
(a) burden of proof; first meaning: risk of non-persuasion 2485
test for this burden; negative and affirmative allegations; facts pecul-
iarly within a party's knowledge ..." s 2486
second meaning: duty of producing evidence S 2487
test for this burden 2488
shifting the burden of proof 2489
effect on, inference from failure to call witness s 291
(b) presumptions; legal effect of a presumption 2490
presumptions of law and presumptions of fact s 2491
conclusive presumptions; rebuttable presumptions 2492
conflicting presumptions; counter presumptions 2493
(c) prima facAe evidence; sufficient evidence for the jury; scintilla of evi-
dence s 2494
direction of a verdict, motion for a nonsuit, and demurrter to evidence,
distinguished s 2495
waiver of motion by subsequent introduction of evidence .... s 2496
(d) measure of persuasion: proof beyond a reasonable doubt; rule for criminal
cases s 2497
proof by preponderance of evidence; rule for civil cases .... s 2498
2. Burdens and Presumptions in Specific Issues
(a) sanity: testamentary and other civil causes; suicide s 2500
criminal causes s 2501
(b) undue influence and fraud: testamentary causes S 2502
confidential relations of grantee or beneficiary s 2503
fraudulent conveyances against creditors s 2504
(c) marriage: consent, from cohabitation or ceremony S 2505
capacity, as affected by intervening death, divorce, or marriage . . s 2506
(d) negligence and accident: contributory negligence S 2507
loss by bailee s 2508
defective machines, vehicles, and apparatus s 2509
death by violence s 2510
(e) crimes: innocence, maUee, guilt, etc s 2511
self-defence s 2512
alibi s 2512
possession of stolen goods ... s 2513
capacity (infancy, intoxication, coverture) s 2514
(f) ownership: possession of land and personalty S 1779, s 2515
possession of negotiable instrument s 2516
(g) payment: lapse of time S 2517
possession of instrument s 2518
(h) execution and contents of document: letters and telegrams 2519
execution of deeds (delivery, date, seal) s 2520
ancient documents 2521
lost grant or other document s 2522
lost wiU (contents and revocation) s 2523
spoliation of documents 2524
alteration of documents s 2525
(i) gifts (wife's separate estate, child's advancement) s 2526
(j) miscellaneous
legitimacy s 2527
chastity s 2528
child-bearing s 2528
identity of person (from name, etc.) s 2529
continuity ; in general s 2530
/ life and death s 2531
siu-vivorship 2532
seaworthiness 2533
regularity; performance of official duty and regularity of proceedings s 2534
807
INDEX OF TOPICS
[Figures set thua ; 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.)
Section
Burden of Proof, and Presumptions (coniimted) .
appointment and authority of officers s 2535
similarity of foreign law s 2536
contracts, bill of lading s 2537
of showing performance of a condition precedent s 2537
in insurance policy note one 2537
statute of limitations s 2538
malicious prosecution 2539
reduction of agreement to writing 2447
confessions s 860
of accomplice s 2060
qualifications of witness 484, s 497, s 508, s 560, s 584, s 654
[Examine analyses of " Burden of Proof and Presumptions," Vol. IV,
pp. 3520, 3548.]
Burglary, tools, etc., as evidence of s 149, s 153, s 238
possession of stolen goods, as evidence of s 163, s 2513
other crimes as evidence of intent s 351
motive for s 391
evidence of identity s 413
Burnt Records, abstract of 1227, 3 1267, s 1705, s 2105, 2107
statutes respecting 2107
Business, course of, as evidence of a transaction 94, 372, s 382
amount of, as evidence of nuisance, value, etc s 462
prudence in matters of, as evidenced by acts of others s 461
stock of goods in, as evidence of amount of s 461
loss of patronage of, as evidence of injury s 462
entries in the course of; see Regular Entries.
By-law; see Best Evidence.
Bystander, exclamations of, during res gestw s 1755
Calendar, used in evidence s 1698
Calling a Witness, what constitutes, on direct examination 1892
out of the usual order; see Examination, III.
as preventing impeachment; see Impeachment.
Canada, conflict of laws of Empire, Dominion, and Provinces s 6
Cancellation, marks on will in testator's custody presumed genuine . note two 21 48
Capacity, physical, as evidence of an act done s 83-85
distinguished from tendency, possibility, cause 446
instances of human conduct, to evidence S 220
of a weapon, machine, etc., as shown by its effects s 441-461
of testator or grantor s 1958, s 2500
of accused S 1958
of infant, opinion to note two 1958
presumption of, in marriage ; . . . s 2506
in testamentary cases s 2500
in criminal cases s 2514
mental, of a party; see Sanity; Undue Influence; Testator.
testimonial, of a witness ; see Witness, I, Qualifications; Child.
Capital of a State or county, noticed s 2575
Car; see Vehicle.
Carbon Copy; see Typewriting.
Carefulness, presumption of s 2507, s 2510
jury may use general knowledge to determine s 2570
opinion as to s 1949-1951
see also Negligence; Skill; Conduct.
Carriage; see Vehicle.
808
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; '1678 (italics) refer to supplement; s 1678 ref^ to both. J
Section
Carrier, wife of plaintiff, as witness against s 612
loss by, presumed negligent s 2508
see also Bill op Lading.
Case Closed, caUing a witness after; see Examination.
Case Stated for argument s 1066
Cash, regular entry to prove payment of s 1539, s 1549
Cattle, brands as evidence s 150
see also Animals.
Cattleg^ard; see Height; Sufficiency.
Cause of an illness, injury, accident, etc., as evidenced by its effects, s 437-461
distinguished from tendency, capacity, possibility . 446
expert opinion as to s 1976
Census, as evidence of population s 1671
judicially noticed s 2577
Ceremony of marriage, presumed valid s 2506
Certificate
(a) in general
(b) of land-grant
(o) of entry
(d) of location
(e) of marriage
(a) in general
contradicting one's own ofScial s 530
admissible when made by authority
simdry officers ' . . s 1674
distinguished from return s 1674
private persons s 1674
of effect of the record s 1674, s 1675
notary's protest s 1675
deed-acknowledgment; oath s 1362, s 1676
of deposition s 1676
certified copy s 1677-1683
printed copy s 1684
authenticated by seal or signature s 2162
presumed correct , s 2534
whether conclusive for
married woman's acknowledgment 3 1347
election s 1351
oath s 1352
acknowledgment s 1352
of immigration inspector s 1354
(b) of land-grant; see Deed.
(c) of entry of land-title; see Deed.
(d) of location of land-patent; see Deed.
(e) of marriage
constitutionality of, as evidence s 1398
in criminal case s 1398, s 2082
made evidence by party's possession 268
admissible as a public document s 1645
not required in bigamy, etc s 2088
presumed genuine, from custody s 2159
conclusive, under parol evidence rule s 2453
[Examine analysis of " Certificates," Vol. Ill, p. 1976.]
Certified Copy.
1. Public Documents
2. Private Documents
1. Public Documents
scope of authority to certify 1677
time and manner of certifying 1677
809
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Certified Copy {continued).
certificate of effect, or non-existence s 1678
authentication of certified copy s 1679
kinds of documents thus provable,
sundry public records s 1680
judicial records s 1681
probate of wills s 1681
lost deeds 1682
copy of whole required s 2107-2111
attested by seal s 2162
whether preferred to sworn copy s 1273
distinction between, and sworn copy s 1273, 1655
excusing from production of attesting witness 1318
2. Private Documents
bank-books s 1683
corporation records s 1683
parish registers, etc s 1683
see also Copy.
[Examine analysis of " Certificates," Vol. Ill, p. 1976.]
Chain of Title, dispensing with proof of prior deeds forming . . note three 2132
affidavit of common source in s 1385
Chancery, rules in, distinguished from rules at law s 4
rules in, as affected by Federal statutes s 6
trials in Federal Courts of s 6
special rule for depositions . . . . • s 1417
for cross-examining to character s 986
for one witness to a biU s 2047
bill or answer in, as an admission 1065, 2121, s 2122
proving the whole of a decree s 2110
a bill 2111
an answer 2111
a deposition 2111
responsive parts of answer as evidence 2121
history of subpoena in . s 2190
discovery from opponent in s 1856, s 1857, s 2218, s 2219
privilege of witness against self-crimination in s 2271
see also Discovery.
Character
In general
1. As Evidence or In Issue
(a) Accused's character
(b) Animals
(e) Complainant in rape
(d) Deceased in homicide
(e) Parties in civil cases
(f ) Plaintiff in mitigation
(g) Third persons
(h) Witness impeached
(i) Witness supported
2. Mode of Evidencing by Conduct
(a) In general
(b) Of a party
(c) Of a witness in impeachment
(d) Of a witness in support
3. Mode of Evidencing by Reputation '
4. Mode of Evidencing oy Personal Opinion
In general, distinguished from reputation 52, 920, 1608
conduct to evidence, as distinguished from relevancy of character itself 53
special chancery rules for cross-examination to s 986
810
INDEX OF TOPICS
[Figures set thua : 1678 refer to maia treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both,]
Section
Character (continued).
1. As Evidence or In Issue . 52
(a) Accused's character as relevant to show an act done or not done . . 55
distinction between evidential, and in issue 54
■general, distinguished from particular acts in rape s 62, S 200
distinguished from habit 92
course of conduct distinguished from s 203
good character always admissible for him • s 56
presumed s 290
bad character not admissible against him 57
erroneously admitted, rebuttal is not a waiver note twenty-six 18
prosecution may rebut 58
kind of character s 59
evidence of, must be in reference to specific trait in issue s 59
time of character 60
place of character 60
accused as witness 61, 890
failure to prove, as evidence of bad character s 290
of arrested person to show reasonable ground for suspicion in arrest by
officer s 258
to justify breach of promise 77
houses of ill-fame and inmates s 78
in seduction 79, 210
of employee as affecting liability of employer s 80
(b) Animal s 68, s 201
(e) Complainant in rape and similar crimes s 62
for chastity, presumption of s 2528
(d) Deceased in homicide, to evidence aggression s 63, s 246
to evidence defendant's apprehension of aggression from deceased . . s 246
(e) Parties in civil cases in general S 64
in negUgenoe - s 65
in defamation 66
in malpractice 67
of opponent from his own interrogatories note eight s 1856
of both father and daughter in issue in father's action for seduction . 210
of both husband and wife in issue in action for criminal conversation s 211
of plaintiff in issue in action for indecent assault 212
(f) Plaintiff, in mitigation of damages s 70-76, s 209-213
in issue for sundry piu-poses s 77-80
(g) Third persons in general s 68
(h) Witness impeached
one's own witness s 900
actual character 920
kind of character 922
other traits than veracity 924
distinction between unchastity in sexes, as affecting truthfulness note two 924
time of character 927
place of character 930
mode of evidencing by conduct; see infra, 2.
mode of evidencing by reputation; see infra, 2.
character as to sanity, skill, etc. ; see Impeachment.
attesting witness 1514
(i) Witness supported
good character, in general 1104
attesting witness 1514
2. Mode of Evidencing by Conduct
(a) In general
of an accused in a criminal case s 192-197, s 215-218
unfair surprise in showing s 194, 202, 1849
811
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
' Section
Character, rumors of misconduct as affecting credibility of witness' testimony
concerning 197
privilege not to disclose crimes s 2268-2277
see also Selp-ckimination.
of a deceased in homicide s 198
of a negligent party in a civil case s 199
of a complainant in rape s 200
of an animal s 68, s 201
(b) Of a party, to show character in issue s 202-208
to mitigate damages s 209-213
(c) " Of a witness, in impeachment
by other witnesses '. 979
by conviction of crime S 980
by cross-examination to misconduct 981
privilege for disgracing answers 985
privilege for crimes s 2268-2277
rumors of misconduct s 988
contradiction by other witnesses S 1005
form of question in impeaching veracity note fourteen 1985
unfair surprise in showing; see Unfaie Surprise.
(d) Of a witness, in support
good character 1104
impeaching the impeaching witness sllll
explaining away bad repute 1112
denial of crime S 1116
consistent statements s 1124
rebuttal of testimony to unchaste, in seduction 16S0
3. Mode of Evidencing by Reputation
. general principle of reputation 1608-1610
reputation distinguished from rumors 1611
distinction between conduct to evidence , and relevancy of character itself 53
extent and place of reputation s 1613-1616
number of utterances necessary 1613
absence of utterances to evidence good 3 1614
reputation outside of place of residence s 1616
time of reputation '. 1617, s 1618
kind of character that may be thus proved
chastity s 1620
house of ill-fame s 1620
common offender s 1620
sanity s 1621
temperance s 1621
expert qualifications s 1621
negligence s 1621
animals . s 1621
solvency s 1623
partnership s 1624
legal tradition s 1625
incorporation S 1625
sundry facts s 1626
limitation of number of witnesses 1908
qualifications of a witness to repute s 691
4. Mode of Evidencing by Personal Opinion
defendant's moral character 1981, s 1983
witness' moral character; belief on oath 1982, s 1985
skill, care, competence . s 1984
see also Unfair Surprise ; Impeachment of a Witness; Chastity.
[Examine analyses of '' Character," Vol. I, pp. 118, 227; Vol. II,
pp. 1055, 1931; Vol. Ill, p. 2626.]
812
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Charge to Juiy, right to judge to give s 2495, 2557, 2559
party offering evidence after . s 1879
Ghaxge and Discharge statements taken together 2117
Charter of city, judicially noticed s 2572
of corporation proved by copy s 1680
Chastity, character of complainant in rape, etc., to show consent s 62
character of the woman in seduction, etc., as mitigating damages or in issue s 76-80
conduct, to evidence rape-complainant's character for s 200
unfair surprise in showing acts disproving s 200
mitigation of damages, as affected by lack of s 210-213
character in issue, as involving acts of unchastity s 204-206
of male and female, distinguished note two 924
provable by reputation s 1620
presumption of s 2528
of a witness, in impeachment; see Impeachment.
Chattel, possession of stolen; see Stolen Goods.
failure to produce, as evidence s 291
value, as evidence of price agreed s 392
marks, as evidence of identity s 150, s 413
identified from appearance s 660
sales of other goods, as evidence of value s 463
condition or quaUty of, as shown by effects, etc s 437-461
quaUflcations of a witness to value; see Value.
whether production in court is necessary s 1181, s 1182
words accompanying delivery of s 1777
inspection of, before trial s 1862
obtained by illegal search s 2183
inspection or production of, compellable . s 2194, 2221, s 2264
Chauffeur; see Automobile.
Cheat, other acts, to evidence a common cheat s 203
to evidence intent S 321
see also False Representations.
Check, evidence of forgery of ; see Pobgeby.
parol transaction collateral to instrument s 1235, 1245, 2443
see also Bill of Exchange; Payment; Document.
Chemical Matters, witness' experience as qualifying him s 568
opinion testimony to s 1975
Chief, case in; see Examination, III.
examination in; see Direct Examination.
Child, resemblance of, to show paternity s 166, s 1154, s 1168
appearance of, to evidence age 222, s 257, s 660, s 1154, s 1168
capacity to testify s 505-509
to take the oath s 1820, s 1821, s 1825
to testify, though not capable of perjury s 1832
corroboration required as witness ... s 2066
presumption of advancement to s 2526
of gratuitous services by s 2526
see also Advancement; A(3e; Infant; Legitimacy.
Childbearing, presumption against s 2528
Chinese as witness; corroboration required s 2066
exclusion of 616
witnesses sufficient to prove presence before 1892 note two 2066
see also Race.
conclusiveness of immigration officer's finding against s 1354
Chose in Action, admissions of assignor s 1082
Church, register of; see Register op Marriage, Birth, and Death.
law of; see Ecclesiastical Law.
Circumstantial evidence, defined 25
distinguished from testimonial evidence 25
813
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.)
Section
Circumstantial evidence (contimied) .
relative value of s 26
general theory of s 38
classification of 43
may be proved by the same kind s 41
criminal's identity as evidenced by traces 148
distinguished from res gestoe ■ . . S 1715
confusion of issues in 1904
unfair prejudice in 1904
sulfloiency for corpus delicti s 2081
for breach of promise 2090
to authenticate a document s 2131
proof beyond reasonable doubt s 2497
Citizenship of immigrant or deported person, administrative officer's conclusive
certificate as to s 1354
City charter, ordinance, boundary, etc., judicially noticed . . . . S 2572, s 2575
ordinance proved by printed copy s 1684
Civil Cases, parties in, character of s 64
eye-witness to marriage not required in s 2086
marriage celebrant's certificate not preferred to eye-witness in ... . s 2088
similar acts, to evidence Knowledge, Design, or Intent in 370
to evidence Habit in note three 376
Claim of Title, as part of re.% gestce s 1778
Claims, prior false, as evidence to impeach a witness . . s 963
as evidence of party's intent to defraud s 340, s 352
Classification of the rules of evidence '3
of the rules of admissibility 11
of circumstantial evidence 43
of the rules of relevancy 24
of prospectant evidence 51
Clergyman, confession to, not excluded 840
privileged communioations to ; s 2394
entries of; see Regular Entries; Register.
Clerk using an entry to aid recollection; see Recollection.
entries of a deceased; see Regular Entries.
of public oflcer or court; see Certified Copy.
of an attorney, admissions of s 1063
signature presumed genuine s 2164
communications to, not privileged S 2286, 2301, s 2317
Client, who is a note one s 2317
privileged communications of; see Attorney and Client.
see also Attorney; Attorney and Client; Parties.
Close of Case, evidence offered after; see Examination, III.
Clothing, as evidence of identity s 413, s 660
testimony to value of; see Value.
exhibition to jury s 1157
Cocaine, use of, to discredit witness note one 934
Co-conspirator, admissions of, in general s 1079
as part of res gestm 1797
see also Accomplice.
Co-defendant, impeached s 967, s 968
admissions of s 1076
husband or wife of, privileged S 2236
accused's failure to call s 2273
see also Defendant; Co-indictee.
Co-tndictee, disqualification as witness s 580
wife of, disqualification as witness S 609
impeachable when called by co-party . . . s 916
impeached by his situation s 967
814
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Co-indictee {continued).
admissions of s 1079
see also Accomplick.
Co-obligee, admissions of s 1081
Co-obligor, admissions of s 1077
Co-party, admissions of s 1076
see also Co-dependant; Co-indictee; Party.
Co-promisee, admissions of s 1081
Co-promisor, admissions of s 1077
Co-tortfeasor, admissions of s 1079
Cohabitation, as evidence of marriage 268, s 2083
as evidence of adultery, etc.; see Adultery; Incest; Marriage.
presumption of marriage from S 2505
Coin, evidence of counterfeiting; see Counterfeiting.
expert witness to genuineness of s 570
Collateral Agreements, to written contracts s 2429, 2435, s 2442
shown by parol s 1235, 1245, s 2443-2445
Collateral evidence, admitted to rebut other collateral evidence s 15
inadmissible when irrelevant 39
of crimes, to show intent, etc s 216, 300
facts, misuse of doctrine 1248
facts, doctrine of, in producing originals ... 1252
contradictions of witness by; see Contradiction; Self-contradiction.
privilege of a witness against disgrace by s 986
unfair surprise in impeachment of witness by, facts 1002, s 1007
test of coUateralness s 1003
contradiction as to bribery not s 1005, s 1022
contents of a document collaterally in issue 1252
attesting witness to a document collaterally in issue 1291
Collision, other instances, as evidencing a defect s 458
spontaneous exclamations of one in a .... note three s 1750, note two S 1755
see also Negligence. ^
Color, as impeaching a witness or evidencing race; see Race.
Color of Title, deed admitted as s 1653, 1655, s 1778, s 2132
Coloring, as used in res gestm doctrine 365, s 1778
Commerce, facts of, judicially noticed s 2580
Commercial Agency, communications to, not privileged s 2286
Commercial Lists used in evidence s l702
Commission, mode of taking testimony on; see Deposition.
former testimony before, whether admissible s 1373
certificate of; see Certificate.
Commitment to an insane asylum; see Sanity.
Common Carrier, loss by, presumed negligent s 2508
bm of lading by, burden of proof for S 2537
Common Law, trials at, in Federal Courts s 6
see also Chancery.
Common OfiEender, other acts to evidence character s 203
prior conviction, to increase sentence ' . . . s 196
provable by reputation s 1620
Common Source of Title, dispensing with proof of prior deeds . . note three 2132
affidavit denying, in ejectment note six 1385
Commimications, privilege for; see Privilege, II.
exciting insane belief, disproof of 26^, 26S
Comparison of Hands ; see Handwriting.
Competence, of evidence; see Admissibility.
of employee; see Employee.
of physician; see Physician.
of persons in general; see Skill; Negligence.
of witnesses in general; see Witness, I, Qualifications.
815
INDEX OF TOPICS
IFigurea set thus: 1678 refer to main treatise; 1678 (italios) refer to supplement; S 1678 refer to botli.]
Section
Complainant, uncorroborated in rape, bastardy, breach of promise, etc. . . s 2061
in rape, too young to be a witness 1139, 1761
Complaint, of rape; see Rape.
admissions in pleading s 1063
failure to make, as an admission s 284
in sodomy note one 1135
of bailee, after robbery .* 1142
of owner, after robbery 1762
after larceny 1142
mother's, in travail s 1141, 1763
Completeness, verbal ■ s 2094
of dying declarations s 1448, s 2099
oral utterances s 2097
documents s 2102
see also Whole of an Utterance; Doctjment.
Compromise, offer to, as an admission s 1061
offers of, by agent s 1061
Compulsory Process
to obtain witnesses
history S 2190
constitutional guaranty s 2191
does not include right to consult witness before trial . . note two S191
use against Executive 2369
exemptions from; see Privilege.
to compel answers; see Privilege.
to compel bodily exposure s 2194, 2216, S 2220, S 2265
confession obtained by; see Confession.
Compurgation; see Wager op Law.
Concealment, as evidence of guilt s 276
of a document s 291, s 1198, 1199
Conclusiveness, of official certificates or records s 1345-1352
of magistrate's report of testimony s 1349
of enrolled statute s 1350
of certificate of election s 1351
constitutionality of statutes declaring 1353
of presumption 2492
of judicial notice 2567
of judicial admission s 1058, s 2588, 2590
of ordinary admission s 1058, 2588
distinguished from parol evidence rule s 2453
Condition, of a human being as to health, etc. ; see Health; Sanity.
prior dangerous, to evidence notice s 252
subsequent repaired, to evidence negligence s 283
of a highway, machine, place, weapon, etc., as evidenced by effects, etc. s 437-462
in one place as evidence of, in another s 438
Condition Precedent, shown by parol evidence s 2408, s 2410, s 2420
burden of proof of performance of s 2537
Conditional admissibility 14, 40, 304, s 1871
Conduct, as evidence 190, 191
to show character in issue s 70-80, 202
unfair surprise in showing s 194, 202, 1849
to evidence capacity s 220
as evidence of insanity s 228
cannot amount to an admission 267, 1052
when under arrest," as evidence of guilt s 273, s 1072
as evidence of innocence " . . . s 293
to prove arson s 396
as measure of time, space, light, sound, etc s 460
of others, as measure of negligence 3 461
816
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement j S 1678 refer to both.]
Section
Conduct {continued).
care s 461, note two 459
cruelty s 461
danger s 461
insuffioienoy s 461
unreasonableness ' . . . s 461
unskilfulness s 461
horses' fright s 461
passengers' behavior s 461
safeguards for railroads s 461
highways s 461
machines s 461
malpractice s 461
customs s 461
libel, etc s 461
reasonableness of, for jury 2553
see also Character; CoNsciorrsNBSS of Guilt, of Innocence; Intent;
Design; Identity; Knowledge; Sanity; Marriage; Demeanor;
Flight; Defendant; Carefulness.
Confession of falsehood disquahfying attester s 528
of judgment, as an admission s 1061
Confession of Crime, rules of, applicable to accused persons only s 815
not applicable to witness or civil party s 815
distinguished from admissions 816, 1050
hearsay 916, s 1049
history of the rules 817-820
what is a confession s 821
distinguished from denials, guilty conduct, and self-contradictions . . . . s 821
principles of exclusion s 822-826
intoxication does not necessarily exclude s 499, s 841
not excluded for breach of confidence 823
for illegality in obtaining 823
under privilege against self-crimination 823
inducement in obtaining s 824-826, s 833, 853
volim-tariness of 826, 843
person in authority s 827-830
English and American authorities distinguished s 829-830
nature of the inducement s 831-841
to clergymen, not excluded 840
statutory definition of " inducement "in s 831
obtained on advice to " tell the truth " s 832
in " sweat box " of police s 833, 851
by threat of corporal violence s 833
by promise of pardon 834
of reward of money s 835
of better treatment s 835
of withholding legal action s 836
by assurances 837-839
hy religious or moral influence 840
by trick or fraud s 841
in sleep, or drug influence note two s 500
under arrest, or on examination by magistrate s 842-852
before coroner s 852
time of beginning and ending of the inducement s 853-855
conflrmation by subsequent facts s 856-859
corroborated by flnding stolen goods s 856-858
facts disclosed by inadmissible s 858, 859
burden of proof s 860
judge and jury s 861, s 862
817
INDEX OF TOPICS ■
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
Section
Confession of Crime {continued).
right to eross-examinS to admissibility of s 861
admissibility of, determined by evidence s 861
voluntariness of, a question for court s 861
sundry rules 86S
sentimentality in receiving 865
value of confessions S 866
future of the doctrine s 867
of perjury, as impeaching a witness s 95&
distinguished from admissions 1050
of principal or co-conspirator s 1079
'' report of prior testimony used as s 1328
of crime by a third person, as hearsay s 1476
whether alone sufficient to convict
respondent in divorce S 2067, 2074
accused in general 2070
bigamy, etc . . s 2086
mentioning another crime 2100
whole must be proved s 2097, s 2100
may be proved s 2115, s 2119
distinguished from self-crimination 2266
to a priest, privilege for s 2394
[Examine analysis of " Confessions of an Accused Person," Vol. I, pp. 918, 919.]
Confidential Communication, confession not privileged as 823, s 841
privileged kinds; see Privilege.
Confidential Relations of grantee, presuming fraud from s 2503
Conflict of Laws, rule of evidence appUcable, in general s -5
between Federal and State laws of evidence s 6
stamped documents and certified copies . . . s 1680, s 1681, s 2184
Dominion and Provincial laws of evidence in Canada s 6
Imperial and Canadian laws of evidence s 6
Conflict of Presumptions 2493
Confrontation, right of; see Hearsay Rule, I.
Confusion of Issues, by showing particular acts of bad character s 194
general theory of 1863, 1904
as applied to conduct to show character in issue 202
in evidencing tendency, capacity or quality 443
in admitting collateral facts to impeach witness 1002, s 1007
in showing self-contradiction 1019
may exclude experiment as real evidence s 1154
as affecting order of evidence 1863
in circumstantial evidence 1904
Congress, privilege of member of s 2375
see also Legislature.
Consciousness of GuUt, as evidence, general theory 173
conduct, as evidence of s 265-293
see also Knowledge.
Consciousness of Innocence, as evidence 174, s 293
Consent, presumption of, to marriage s 2505
see also Contract; Bill oe Lading; Age of Consent.
Consideration, words as res gestm, to show s 1777
recital of, varied by parol s 2433
presumption of s 2520
Consistent statements by a witness; see Witness, III.
Conspirator; see Co-conspiratoe.
Constitutional Rules, in general s 7
affecting legislative power to alter the law of evidence s 7
forbidding ex post facto laws s 7
requiring formaUties for enacting a bill s 1350, s 2592
818
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.J
, Section
Constitutional Rules {continued) .
whether testimony may be declared conclusive 1353
sanctioning right of confrontation 1397
use of certificate of marriage . . . ' s 1398
right of confrontation consistent with use of depositions s 1398
dying declarations ... s 1398
former testimony .... s 1398
official statements .... s 1398
reputation s 1398
respecting right of confrontation may be waived s 1398
requiring full faith and 'credit to State records s 1681
for compulsory process s 2191
does not include right to consult witness before trial .... note two $191
vahdity of admission of absent witness' testimony s 2595
efifect of waiver by judicial admission ... s 2592
Construction
of other machines, buildings, etc., as evidence of danger, etc. s 437, s 451, s 461
of a document; see Paeol Evidence Rule, D.
Consul, privilege of 2372
certificate of s 1674
Contempt, for not obeying compulsory process
power of officer summoning s 2195
excuse of witness s 2204
refusal to disclose irrelevant matter s 2210
exemption of Executive from process 2369
proof beyond a reasonable doubt s 2498
whether the 6th Amendment applies to proceedings for 1S98
Contents, of a document; see Will; Document.
Continuance, absent witness' testimony admitted to avoid s 2595
granted for unfair surprise 1848
Continuity, presumption of ' s 2530
presumption of, is founded on inference 4^7
of ownership note two s 2530
possession note two s 2530
authority note two 2530
insanity note two S 2530
residence note two 2530
physical or external condition j s 225, s 437
Contract, course of business as evidence of 94, 372, s 382
intention as evidence of s 112
behef as evidence of v. 272
other transactions, as evidence of terms of s 377, 379
value of goods or services, as evidence of price agreed in s 392
utterances of, as res gesice s 1770
opinion of damages by breach of note one s 1944
meaning of, by opinion evidence s 1969, s 1971
understanding of the parties s 1971
putting in the whole s 2099, s 2105, s 2115
discharge by parol s 2441, s 2455
alteration by parol note one s 2441
bogus or sham s 2406
subsequent agreement not to sue 2435, s 2444
condition precedent, shown by parol s 2408, s 2410, s 2420
reformation of, in equity 2417
eompletenesfe of, in ticket . . . , note two 2432
of warranty, shown by parol s 2434
agreement in, not to be used as binding 2435
transactions of friendship in 2435
burden of proof in . s 2537
819
INDEX OF TOPICS
[Figures set thus: 1678 r6£er to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Contract (continued).
jury or judge to interpret s 2556
calling the attesting witness; see Attesting Witness.
production of original; see Original Document.
interpretation of; see Pabol Evidence Rule, D.-
with deceased party; see Deceased Person.
Contradiction of a witness, to impeach him
one's own witness S 907
general theory 1000
collateral facts excluded 1001
test of coUateralness s 1003
material facts 1004
facts of bias ... s 1005
corruption . . s 1005
intoxication s 1005
moral character s 1005
skiU S 1005
illness . s 1005
opportunity to observe s 1005
reoolleetion . . s 1005
narration . s 1005
prior inconsistent statements . . s 1005
particular acts of misconduct s 1005
cross-examination s 1006
supporting the witness s 1007
answers in, on direct examination . . s 1007
of an explanatory statement s 952, 1046
falsus in uno, as a rule for rejecting testimony 1008
falsity must be wilful and material . s 1013, s 1014
may be explained . . 1972
Contribution
sued for by joint tortfeasor; testimony at first trial received . . note six 1387
Contributory Negligence, not presumed s 2507, s 2510
see also Negligence.
Conversation, by an interpreter, testimony to . . 668
by telephone, testimony to . s 669
authentication of, by telephone s 2155
meaning of, proved by opinion evidence s 1969
whole must be proved s 2097, s 2099
may be proved s 2115, s 2119
Conversion; see Trover.
words accompanying the taking, as res gestce S 1777
Conveyance, of property, as evidence of a weak case s 282
relationship as bearing on good faith in S 39I
privilege for advice in drafting s 2297
record of; see Recorded Conveyance.
Conviction of Crime
1. Disqualification by
2. Impeachment by
3. Sundries
1. Disqualification by 519
general principles 519
kind of crime 520 •
judgment controls S 521
conviction in another jurisdiction g 522
removal of disqualification, by pardon, etc s 523
statutory changes s 524
proving by cross-examination without copy s 1270
whole of the record s 2110
820
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
n •.-.«■ , Section
Conviction of Crime {continued) .
2. Impeachment by
general principle s 980, s 986, s 987
asking on cross-examination s 980, s 1270
producing a record-copy a 1270
restoring credit after 1106, s 1116, s 1117
identifying by name S 2529
3. Sundries
imprisonment of attesting witness 1315
infamy of an attesting witness , S 1316
of witness, excusing absence of a deponent 1410
of principal, used against accessory s 1079
of third person, to exonerate accused 142
of accused, to increase sentence s 196
Copy of a Document
1. When must the original be produced
2. Rules for proof of copy, when original's non-production is excused
3. Official or certified copy
4. Sundries
1. When must the original be produced; see Geiginal Document.
2. Rules for proof of copy, when original's non-production is excused
nature of copy-testimony 1264
as distinguished from recollection 1266
copy preferred to recollection of contents s 1268-1271
party's admission 1255
witness' admission s 1259
public record s 1269
record of conviction s 1270
foreign statute s 1271
duplicate, distinguished from copy 1231
carbon, as original note four s 1234
kinds of recollection-witnesses s 1272
examined and sworn copies s 1273
certified copies s 1273
copy preferred to abstract s 1273
newspaper files note seven 1273
copy of a copy 1274, s 1275
personal knowledge of correctness 1278, 1279
cross-reading 1279
press-copies, etc 1280, 2019
photographic copies s 797, 2019
calling the copyist s 1281
3. Official or certified copy
when admissible; see Certified Copy.
not preferred to sworn copy S 1273
4. Sundries ,
copy in general 801
which party may make note fourteen 1859
distinction between different kinds of copies 1655
copy of printed matter, as a sample to identify 440
of paper, used to aid collection s 749, s 760
preference for maker of copy to recollection-witness 1338
of lost document judicially established s 1347
erasure in, not fatal note twelve 1677
of lost ancienD'deed s 2143
of printed decisions and statutes s 1684
proving the whole of the original
lost documents s 2105-2107
public records 2108, s 2109
821
INDEX OF TOPICS
prigures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to both.]
Section
Copy of a Document {continued).
judicial records s 2110
furnished on demand before trial; see Discovery.
authentication by seal or signature s 2162
[Examine analyses of " Production of Documentary Originals," Vol. II,
pp. 1383, 1384; and " Verbal Completeness," Vol. Ill, p. 2819.]
Copyright, infringement of, other acts showing intent . . .^ s 371
master's report of evidence on infringement note two i WQX
summary of contents, to prove infringement s 1230
Coroner, confession made on examination before s 852
report of former examination of witness before,
whether preferred . s 1326, s 1329, s 1349
whether admissible . ^ . . . 1667
former testimony before, without cross-examination s 1374
inquest of death, as evidence s 1671
verdict of, to show cause of death note eight s 1671
inquest of, is not a trial note seven 1834
tetisfying before, as a waiver of privilege s 2276
Corporal Injury, repairs of premises after, as evidence of negligence . . . s 283
appearance of a wound, as indicating distance of assailant s 457
speculative testimony to 663
physician's testimony as to possible developments in 663
quaUfleations of witness to s 688
insurance as discrediting defendant-witness in s 969
exhibition to the jury, whether allowable s 1157, s 1158
whether compellable S 2194, s 2220, s 2265
expressions of pain caused by 1718
res gestce statements after 1747
inspection of, before trial S 1862
privilege against inspection of s 2194, s 2220, s 2265
opinion of damages by note one s 1944
opinion testimony to S' 1975
inspection of, compellable s 2194, s 2220, s 2265
privilege for communications to physician s 2380
presumption of negUgenoe from 3 2507-2510
see also Negligence; Illness; Damages.
Corporation, disqualification of opponent as witness to a transaction with a
deceased officer of s 578
books and records of, as admissions s 1074, s 1076
as official records 1661
distinction between 1661
as regular entries S 1542, 1547
original books not produced s 1223
conclusive proof of proceedings 1346, s 2451
inspection before trial . . s 1858
copy of whole required s 2109, s 2116
proved by certified copy s 1683, s 1710
certificate or charter of incorporation, proved by certified copy .... s 1680
records of, proved by certified copy s 1683
existence of, proved by reputation s 1625
seal, presumed genuine s 2169
privilege against self-crimination s 2259
distinguished from official's personal privilege note two S269
officer liable to subpoena duces tecum s 2200
special form of process to secure books of $200
discovery from s 2218
immunity from disclosure; see Immunity.
incriminated by facts obtained from third person S281
negotiable instrument signed by officer of s 2444
822
INDEX OF TOPICS
IFiguiea set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.'
Section
Corporation (continued).
acts of, under parol evidence rule s 2451
officer or employee of, examined as adverse party impeachable by the exam-
iner 916
Corpse, exhumation of, to obtain evidence 186S, S194, SS^O
Corpse-touching as evidence s 9
Corpus Delicti, as negatived by survival of the alleged deceased 138
proof required, to corroborate confession 2070
definition of s 2072
identification of deceased not part of note three a 2072
age of defendant may be part of note five 2072
order and sufficiency of evidence of s 2073
proved by circumstantial evidence s 2081
direct testimony required by statute s 2081
Correspondence, acquaintance with, as qualifying a witness to handwriting . s 702
putting iv. the whole s 2104, s 2120
reply-letter presumed genuine . . 2153
Corroboration, what is 2062
Corroboration of a Witness
1. Modes of supporting an Impeached Witness; see Witnessi, IV, Restoring Credit.
2. Kinds oj witnesses required to be Corroborated though unimpeached
treason s 2036
perjury 2040
sundry crimes s 2044
divorce s 2046
chancery s 2047
wiUs s 2048-2052
usage or custom s 2053
sundry civil cases s 2054
accomplice s 2056
complainant in rape s 2061
bastardy s 2061
seduction s 2061
enticement , . ' s 2061
breach' of marriage-promise s 2061
parent bastardizing issue s 2063
surviving claimant ' s 2065
children s 2066
Chinese s 2066
detectives s 2066
prostitutes, etc s 2066
confessions
divorce respondent s 2067
accused 2070
3. Sundries
confession, corroborated by subsequent facts 856
utterances identifying a time or place 416
[Examine analysis of " Number of Witnesses Required," Vol. Ill, p. 2692.]
Corruption of a witness, as impeaching him s 956-964
of one's own witness s 901
willingness or offer to testify falsely 957, 958
confession of false testimony 959
attempt at subornation 960, 962
receipt of money s 961
sundry corrupt conduct s 963
preliminary inquiry to witness 964
contradiction by other witnesses s 1005, s 1022
Counsel, comment of; on failure to produce evidence 285-291
cross-examination by more than one s 783
823
INDEX OF TOPICS
IFigures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.l
Section
Counsel {continued).
statements by, as admissions S 1063, s 1066
notes of testimony taken by s 1669
reading scientific books to jury s 1700
stating facts in argument • • -. 1806
improper statements by, in argument 1806, s 1807
in offering evidence or questioning witness . . s 1808
using emotional language to excite prejudices of jury note four s 1807
illustrating argument by referring to literature note three 1807
taking the stand as witness s 1911
claiming privilege for witness s 2270
authority to make judicial admissions 2594
see also Attorney and Client; Attorney.
Counter-claim, agreement of, shown by parol 2436
Counterfeiting, possession of materials, as evidence of s 153, s 238
other crimes, as evidence of intent 309
forms of offence connected with 309
Counterpart, as equivalent to original s 1232
County ordinance, boundary, etc., judicial notice of s 2575
Course of business, as evidence of an act done 92
Court, record of; see Judicial Record.
adjournment of, as affecting publicity 1835
exclusion of witnesses from s 1837
seal of, presumed genuine s 2164
ofB.cers and rules of, judicially noticed S 2578
see also View; Trial; Judge.
Coverture, presumption of coercion during s 2514
as evidence of prior or subsequent condition s 382
see also Marriage.
Credibility of a witness; see Impeachment; Weight; Witness, IV, Restoring
Credit.
Credit, knowledge of falsity of representations as to, evidenced by repute . s 256
of witness affected by his demeanor s 946
restoring credit of accomplice s 1128
of biased witness .... s 1128
of impeached witness 1106, S 1116, s 1117, s 1131
utterances showing to whom, was given s 1777
Creditor, of partnership, repute as evidence of knowledge of s 255
of an insolvent; transfers as evidence of intent to defraud 333^
debtor's admissions used against s 1081, s 1082, s 1086
indorsement of pa3rDaent by, as statement against interest . . . s 1460, s 1466
utterances showing to whom credit was given S 1777
possessor's utterances, used against s 1779
presumptions applicable to sale in fraud of s 2504
presumption of intent to defraud, in transfer to wife 3 2526
Crime, by a third person, as exonerating an accused . . . s 68, s 139-142, s 1726
evidence admissible, though it involves 215
threats to commit a s 105
other crimes, as evidence of intent, knowledge, or design s 300-367
constitutionahty of statute defining s 1354
privilege not to disclose; see Self-Crimination.
confession of, by a third person s 1476
by foreign law not privileged S 2258
request to commit, not privileged note two 2385
presumption of capacity to commit s 2514
marriage disqualifying spouse as witness; see Marital Relationship.
see also Conviction or Crime; Criminal Trial; Intent; Defendant.
Criminal Conversation, character'of plaintiff as mitigating damages s 75, note one a 76
conduct of plaintiff as mitigating damages 210
824
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.J
Criminal Conversation {continued). Station
character of both husband and wife in issue in g 211
conduct of defendant at other times, to show motive ...".' .' .' . ' s 398
expressions of husband or wife showing feelings ....'.'.' .' .' . ' g 1730
reputation evidence of marriage insufiftcient to prove .....'." s 1604
eye-witness of marriage required '. . ' s 2085
marriage celebrant's certificate not preferred to eye-witness • • ■ ^ 2QiS
marital privilege in \ \ \ S 2239, s 2338
unnimal Intent; see Intent.
Criminal Trial, rules of evidence in, the same as in civil trial s 4
in Federal courts, rules applicable in . .' s 6
injured person's admissions in .' ' s 1076
exhibition of weapons or wounds to jury s 1157 s 1158
history 6f rule for original documents in ' s 1177
notice to produce original in 1205
right of confrontation in 1397
list pf witnesses to the accused in s 1850
list of grand jiu-y witnesses s 1852
known to prosecuting attorney s 1853
list of all prospective witnesses s 1854
unlisted witnesses excluded by statute , s 1855
eye-witnesses of crime required 2078 '
eye-witness to marriage in note nine s 2086
marriage celebrant's certificate not preferred to eye-witness s 2088
proof of corpus delicti 2070 S 2081
tender of witness' expenses in s 2201
marital privilege in S 2239
patient's privilege in s 2385
proof beyond a reasonable doubt in s 2497
inference from failure to produce evidence in s 2273
burden of proof in general a 2511-2514
see also Defendant; Character; Crime.
Cross-examination
I. Right to a Cro^ss-examination
II. Mode of Interrogation
III. Order of Topics and Witnesses (Cross and Direct)
IV. Methods of Using for Impeachment
V. Sundries
I. Right to a Cross-examination
theory and art of 1362, 1365, s 1867, s 1368
adding to cross-examiner's own case s 1368
bringing out undesirable facts on s 1368
opportunity for, equivalent to actual s 1371
tribunal not employing, bars admissibility elsewhere s 1373
constitutional guarantee of 1397
issues and parties affecting opportunity of s 1386-1389
exclusion of testimony or deposition not subjected to cross-examination;
see Hearsay Rule, I.
admission of testimony or deposition of absent person already cross-ex-
amined; see Hearsay Rule, I.
exceptional admission of hearsay statements made out of court ; see Hear-
say Rule, II, III.
testimony excluded for insufficiency of s 1390-1393
adequacy of, in foreign language s 1393
failure of, through witness' death or illness s 1390
through refusal to answer s 1391 '
refusal to answer on, as to privileged subject note two a 1391
hampered by organic defect of senses s 1393
testimony e.xcluded for non-responsive answers s 1392
825
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Cross-examination {continued).
right to cross-examine to admissibility of a confession s 861
showing document to opponent before s 1861
what witnesses may be subjected to
witness sworn by mistake 1893
called but not sworn s 1893
sworn but not questioned s 1893
producing or proving a document s 1893, 18Q4
one's own witness s 914
party opponent treated as if on note one 1884
voir dire s 1384
of a deposition, excluded
if direct answers are excluded s 1893
or not offered s 1893
of non-taker using the whole s 1893
II. Mode of Interrogation
theory and art of s 1367, s 1368
putting hypothetical questions on 684
specifying grounds of recollection on 730
use of a memorandum of recollection on 753, s 762, 764
use of a deposition to refresh recollection s 761
leading questions on S 773, 915
misleading questions on s 780
derogatory and untrue insinuations in questions on s 780
intimidation by cross-examiner , s 781, s 786
intimidating and annosdng questions on S 781
repetition of questions on s 782
multiple cross-examiners s 783
length of s 783
non-responsive answers on s 785
improper offer of evidence on s 1808
see also Question to a Witness.
III. Order of Topics and Witnesses (Cross and Direct)
order and time of examination s 1867
postponement and waiver s 1884
offering documents s 1884
putting in one's own case 3 1885-1891
who may be cross-examined; see supra, I.
stating the purpose of a question on s 1871
re-cross-examination 1897
recall for re-cross-examination . . , S 1899
see also Examination.
rV. Methods of Using for Impeachment
to impeach rape-oomplainant as to chastity s 200
to impeach a witness
general theory 878
one's own witness s 914
broadness of scope s 944
bias or quarrels a 951
conviction of crime s 980, s 1270
may ask about previous convictions, but not prosecutions . . note one 987
other misconduct s 981-983
rumors of misconduct s 988
testing a witness' grounds of knowledge 994
; testing a witness' recollection s 995
manner of questioning s 780, s 781
leading questions s 773
repetition of questions . . . s 782
collateral facts s 1006
826
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Cross-examination (^continued).
self-contradictions s 1023
by preliminary warning 1025
expert witness, in general 3 991
to value s 463
to handwriting s 2016^
to scientific books s 1700
restoring credit after 1106, s 1117, s 1131
see also Witness IV, Restoring Credit.
privilege not to criminate s 2268, s 2277
to impeacb a party as witness
'accused 889, s 2277
civil opponent . s 916
by account-books s 1554
V. Sundries
distinction between, and extrinsic testimony 878
to contents of a document 1255, s 1259
prior deposition s 1262
showing document to opponent before s 1861
witness on 1185
to testimony before a committing magistrate s 1375
preUminary warning to guard against unfair surprise 1025
[Examine analyses of " By Cross-examination," Vol. II, p. 1697; and
"■ Testimonial Narration or Communication," Vol. I, p. 858.]
Crossing of railway; see Highway; Negligence; Repairs.
Cross-reading of a document copied 1279
Cruelty, other persons' conduct, as a standard of . . . . s 461
other like methods to show, to animals s 461
by husband to wife ; see Homicide.
Cumulative witnesses excluded s 1907
Curative admissibUity s 15
Custodian's certified copy ; see CERTiriED Copy.
Custom, as evidence of doing an act 92
other instances, as evidence of tenor s 376, 379
evidence of land rights founded on ' • . 380
in other factories, etc., as evidence of safety, etc s 461
■ witness' experience in 665
concerning land-rights; see Reputation.
proved by opinion 1954
by one witness s 2053
of a trade or locality to vary terms of written contract s 2440
judicially noticed s 2580
see also Habit; Usage.
Customers, names of, as privileged s 2212
Customs Dues; see Importation.
D
Dactyloscopy, as affording evidence of identity 149, 413
Damages, character of plaintiff in mitigation of 3 75-80
conduct, to prove character in mitigation of s 209-213
opinion testimony to 1942, note one s 1944
impeaching a verdict determined by average s 2354
amount of, as evidenced by other transactions; see Contracts ; Value.
other defamatory utterances, to increase ; see Defamation.
Danger, of machine or place, evidence of owner's knowledge of ..... s 252
construction of other machines, buildings, etc., as evidence of s 437, s 451, s 461
other instances of injury, etc., as evidence of s 451-461
opinion as to 1949
risk of fire; see Insurance.
827
INDEX OF TOPICS
[Figures get thua : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Date; see Time.
Daughter; see Seduction.
Daybook of regular entries s 1548, s 1558
Deadly Weapon, knowledge principle as applied to use of s 363
malice presumed from use of noie/oMr s 2511
Deaf-mute may be a witness s 498
interpreter's qualifications s 571
necessity of interpreter S 811, 1S93
impeachment of s 934
Death, as evidenced by failure of search 1S8, 667
by lack of news s 158
explaining away lack of news of s 158
of opponent, not necessary for using admissions s 1049
of attesting witness s 1311
of declarant of facts against interest s 1456
of pedigree-declarant S 1481
of maker of regular entries S 1521, s 1561
• statement of time or place of; see Family Histoet.
reputation of s 1605
register of; see Rbqistbk of Makeiage, Bieth, and Death.
as excusing lack of cross-examination s 1390
as allowing use of deposition 1403
provable by coroner's inquisition S 1671
as affecting marital privilege S 2237, S 2341
patient's privilege 2387, s 2391
^chent's privilege 2323, s 2329
presumed, to vahdate a later marriage . ' . s 2506
negligence presumed from S 2510
absence raises presumption of S 2531
De bene esse ; see Deposition.
Debt, prior indebtedness, as evidence s 382
pecuniary relations to show bias of a witness note three 949
as evidence of motive s 392
see also Payment; Contbact; Cbeditoe.
Debtor, indorsement of payment by, as statement a^inst interest . s 1460, s 1466
admissions of, used against creditor s 1081, s 1082, s 1086
declarations of, to show motive in conveyance S 1083, s 1086
utterances in possession, used against creditor s 1779
see also Cebditoe.
Deceased Declarant; see Dying Declabation.
Deceased by Homicide, character of, to evidence self-defence . . . . s 63, s 246
threats of, to evidence self-defence 110, s 247
, survival of, to negative corpus delicti 138
suicidal plans of, to evidence an accused's innocence . . . 143, s 1725, s 1726
acts of violence by, to evidence self-defence s 198, s 5!48
details of prior quarrels to show hostihty by note three S96
Deceased Person, in general, testimony of, based on personal observation . . 670
disqualification of surviving opponent as witness ... s 578, s 1576, s 2065
of wife of s 610
Maryland rule requiring proof of contract with note jive B06B
admissions of a 1081
oral, not sufScient to establish claim against estate of note four SOS4
character of, to prove negUgence s 65
use of account-books for or against ^ S 1554
hearsay statements of, admissible
dying declaration; see Dying Declabation.
facts against interest; see Against Jnteebst.
pedigree; see Family Histoey.
attesting witness; see Attesting Witness.
828
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
Section
Deceased Person, in general {continued).
regular entries; see Regular Entries.
private boundaries; see Boundaries.
ancient deed-reoitals; see Recitals.
deceased persons in general s 1576
statutory exception for all statements of s 578, 3 1576
see also Death; Survivor.
Deceased Witness, former testimony of; see Former Testimony.
Decision; see Judicial Decision.
Declarant, of facts against interest, absence of s 1456
absence of pedigree s 14S1
disqualification of, under exceptions to Hearsay rule 1751
Declaration, of intent, used to interpret a document s 2471
after possession ended, as admission note two 1778
during possession, as verbal act s 1777, s 1778
of deceased person; see Deceased Person.
chauffeur's, of own responsibility for collision . . ,, note two 1041
Dedication, words accompanying, as res gestm s 1777
opinion evidence of intent of s 1967
Dedimus Potestatem; see Deposition.
Deed, execution or delivery of, as evidenced by possession of it ..... s 157
mode of proving forgery of; see Forgery.
impeaching one's own 529
possession under, as evidence of boundaries 378
original must be produced; see Original Document.
calling the attesting witness; see Attesting Witness.
recitals in, as admissible; see Recitals.
land-grant of government s 1225, s 1239
certificate of acknowledgment of, whether conclusive s 1347, s 1352
registration of, whether conclusive s 1352
contents of lost deed, recited in another s 1573
discrimination between uses of recitals in 1674
as showing reputation of boundary 1592
admission of execution of recorded s 1653
execution of, proved by certificate of acknowledgment s 1676
abstract of title, as hearsay s 1705
words accompanying gift by s 1777
location of description in, by opinion 1965
substance of contents, of lost s 1957, s 2105
existence of seal on recorded note one s 2105
dispensing with proofs of prior note three 2132
see also Common Source op Title.
thirty years old, presumed genuine . ., s 2137-2146
proof of agent's authority to execute ancient 2144
filed in official records, presumed genuine s 2159
privilege for title-deeds . . ; -•-,■_ 2211
recital of consideration in, varied by parol s 2433
condition precedent, shown by parol s 2408, s 2420
distinction between, and will note fifteen s 2408
recording not necessarily final act of note fourteen s 2408
absolute in form, shown by parol to be security only s 2437
collateral agreements to a note one s 2442
see also Collateral Agreements.
interpretation of 2458
erroneous description in a note one s 2477
burden of proof of capacity of grantor s 2500
presumption from confidential relations s 2503
presumption of delivery, date, seal, etc s 2520
of lost grant s 2522
829
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Deed {continued).
of alteration before execution s 2525
of identity of grantor or grantee s 2529
reservation in, burden of proof note one s 2537
see also Document; Execution; Handweiting; Recorded Convey-
ance; Abstract of Title-deeds; Color of Title. ,
De facto officer, document made by s 1633
celebrant of marriage s 2505
appointment presumed s 2535
Defamation
character of plaintiff, to evidence innocence 66
to mitigate damages s 70-74
mitigation of damages in, as affected by the pleadings 71, s 73
general character or particular traits in mitigation of damages in . . . 72, s 73
reputation founded on rumor as mitigating damages in s 74
conduct of plaintiff as affecting defendant's ground for suspecting in . . . s 74
defendant not originator of charges in S 74
good character as affecting damages in note one s 76
acts of plaintiff, to justify or to mitigate damages s 207, s 209
unfair surprise in justifying acts in s 207
other acts, to evidence intent s 367
other utterances, to evidence malice S 403-406
other persons' libels, as a standard of criticism S 461
meaning of, by opinion evidence s 1971
whole of an utterance to be proved s 2097, s 2115, s 2119
proof of charge beyond reasonable doubt S 2498
testimony before grand jury, not privileged s 2363
official reports, privileged s 2376
proving pubUcation of the original document containing .... s 1232-1257
Defect, presumption of, from accident s 2059
' see also Negligence.
Defendant
character of accused, as evidence s 55-57
time of character 60
kind of character s 57-59
accused as witness 61, s 196
character of a civil defendant s 64-67
threats of accused, to prove crime s 105
mode of evidencing character b^ conduct
of accused s 192-196
of civil party negligent . . . . S 199
of deceased in homicide s 198
of character in issue 202
of character to mitigate damages s 209
mode of evidencing skiU or strength s 220, s 221
sanity s 228, s 231
mental capacity s 228
knowledge or belief; see Knowledge.
consciousness of guilt; see Consciousness op Guilt.
history of accused's disqualification as witness s 576
statutory abolition of the same S 579
co-defendants as witnesses , S 580
wife of, as witness s 609
testifying to his own intent S 581, 1965
confessions of; see Confessions.
admissions of; see Admissions.
impeachable like other witnesses, when called for himself 890
when called for the opponent . . . . s 916
may impeach a co-defendant s 916
830
INDEX OF TOPICS
[Figures set thua; 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Defendant {continued). >
admissions of a co-defendant s 1076
incompetency of evidence cannot be waived by infant note one 1063
statements when found with stolen goods s 177^, s 1781
silence of, as an admission 292, 1052, s 1071, s 1072
prejudice to, by exhibition of wounds, etc s 1157
consistent statements of, in vindication 1144
magistrate's report of examination of s 1326, s 1349
bystander's testimony on report of examination of illiterate . . . note one 1278
expressions of intent or motive s 1732
expressions negativing intent s 1732
right to be present at a view 1803
opinion testimony to capacity of s 1958
confession of accused, sufficiency of 2070
examination of accused before magistrate ; see Deposition ; Formeb Testi-
mony.
■ privilege against self -crimination s 2276
see also Co-indicteb.
Definition, of evidence 1
of Preferential rules 1172
of Analytic rules 1172
of Prophylactic rules 1172
of Simplificative rules 1172
of Quantitative rules 1172
Degree of probative value required for relevancy s 38
of evidence; see Best Evidence; Copy.
Delay, in complaining or suing, as evidence s 284
Delivery by mail, express, or telegraph s 95
of a deed, as eviden'ced by possession of it s 157
words accompanying, of a chattel s 1777
of a document, proved without production . 1248
of negotiable instrument in escrow • s 2409, s 2420
of a deed, shown conditional by parol evidence s 2408, s 2420
grantee's possession as evidence of s 2520
date of, presumed from date of document s 2520
registration as evidence of s 2520
see also Parol Evidence Rule; Deed.
Delusion, as affecting competency 32
Demand for a document; see Notice to Produce.
Demeanor, of accused, as evidence of guilt s 273, 274
under the right of confrontation 1395, 1399
of a witness, as affecting credibility s 946
Demurrer to evidence ^ 2495, 2589
to claim barred by statute of limitations s 2538
Dentist, privileged communication to s 2382
Deponent, absence of ^ 1404:
Deposition
I. Right o} Cross-examination oj Deponent
II. Right of Confrontation of Deponent
III. Sundries '
(a) taking
(b) transcribing
(c) use by proponent
(d) use by opponent
(e) miscellaneous
I. Right of Cross-examination of Deponent
personal attendance must be shown impracticable 1376
notice required ^ 1377-1383
plural depositions s 1379
831
INDEX OF TOPICS
IFigures aet thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Deposition {continued).
in perpeiuam memoriam, is notice required S 1378, 1383
interval of time after notice s 1378
attendance cures defective notice s 1378
in perpetuam, recording may be necessary 1383
issues and parties the same s 1386-1388
either party may use s 1389
opponent using suppressed deposition . s 1389
non-responsive answers s 1392
sweeping interrogatories S 1392
II. Right of Confrontation of Deponent
constitutional guarantee 1397
witness-rule of number, satisfied by 1305
spurious distinctions between de bene esse and in perpetuam memoriam . 1401
between civil and criminal cases 1401
excuses for non-attendance (death, iUness, non-residence, imprisonment,
etc.) s 1402-1413
proof of the excuse s 1414
witness present in court note ten 18, s 1415
not usable if witness available s 1415
except to impeach s 1416
opponent's deposition s 1416
opponent's depositon s 1416
deposition used to impeach deponent s 1416
mahoious prosecution s 1416
chancery depositions s 1417
probate and bastardy examinations s 1417
chancery and dedimus potestatem s 1381, s 1417
perpetuam memoriam s 1378, S 1412, s 1417
statutes affecting, in perpetuam memoriam S 1412
de bene esse S 1411
III. Sundries
(a) taking
mode of taking 1376, s 1380, 1401
objection to, time of making 8 18, 486
must be taken by one authorized 1376
mode of interrogation in; see Question to a Witness.
prepared beforehand to suggest answers 787
offlcer taking, not to be party's agent or kinsman s 803
taking an attesting witness' deposition S 1312
power of offlcer to compel answer s 2195
persons privileged to testify by 2205, 2206
attendance from a distance not required s 2207
(b) transcribing
transcription of answers to be literal and immediate 804
reading over and signing 80^
(c) use by proponent
used to refresh the recollection of one's own witness 904
used to aid recollection s 761, 764
prima facie effect of, by attesting witness note two s 2500
(d) use by opponent
used by opponent, as preventing impeachment s 912, s 913
discrediting its mode of preparation 996
impeachment by self-contradiction g 1031
in another trial, used or referred to s 1075
cross-examination on a prior deposition s 1262
(e) miscellaneous
in general 802
magistrate's report of examination preferred s 1326, s 1349
832
INDEX OF TOPICS
(Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.)
T» -J.- ..... Section
Deposition, perjury in, inadmissible note twelve 1S49
written deposition required to be used s 1331
of ambassador g 1384 1407
statement in, to evidence pedigree 1495
certificate of taking of s 1676
certified copy of; see Certified Copy.
liability of deponent for perjury s 1832
cross-answers excluded
when direct answers are s 1893
when taker does not offer s 1893
non-taker using may not impeach s 1893
putting in the whole s 2103, 2111, s 2115
docuinents referred to in s 2104
is no part of record 2111
annexing a copy of a document to 1185
producing original S 1215
under Federal statute; conflicting laws note five 6
see also Discovery; Examination.
[Examine analyses of " By Cross-examination," Vol. II, p. 1697; and
'' By Confrontation," Vol. II, p. 1749.]
Deputy Officer, document made by s 1633
Description, in deed, interpretation of; see Parol Evidence Rule, D.
location of, in deeds, maps, etc s 1956
Design, as evidence of an act done s 102-113
definition of 300
distinguished from intent or motive 103, 237
distinguished from intention 103
relevancy of, distinguished from hearsay expressions of 103
conduct, preparation, etc., as evidence of s 237-240
other crimes, as evidence of s 300-367
statements of s 1725, 1735
Destruction of evidence, as indicating guilt s 278
of document, as evidence of contents s 291
as excusing production s 1193
of other property, as evidence of a nuisance s 451
Detective, impeached by his interest or bias s 949, s 969
testimony of, to be corroborated s 2066
confession made to; see Confession.
De ventre inspiciendo, writ of s 2220
Devisee, admissions of s 1081
see also Will; Executor.
Diagram, as a mode of testifying 790
verification of 793
Dictagraph as a basis for testimony to a conversation overheard 669
Dictionaries, used in evidence 1699
judicially noticed S 2582
Difficulty, of work, etc., as shown by instances s 460
Diligence in search for lost document si 194
in search for attesting witness s 1313
Diplomatic Officer; see Ambassador; Consul.
Direct Evidence, defined 25
Direct Examination
specif3ring grounds of knowledge on s 655
specifying grounds of recollection on 730
leading questions on; see Question.
contradicting answers made on s 1007
struck out, if cross-examination is not had s 1390
order of topics on 1883
putting in documents on 1883
833
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement: s 1678 refer to both.}
Section
Direct Examination {continued) .
party opponent on, treated as if on cross-examination note one 1884
irrelevant matters, conditionally received on S 1871
what constitutes calling a witness on 1892
cross-examination to facts asked for on s 1885-1891
see also Examination; Cross-examination.
Directing a verdict s 2495
Disbarment, proof beyond reasonable doubt s 2498
Discharge of contract, sliown by parol s 2441, s 2455
charge and discharge entries 2117
Discovery
general principle as to discovery
common law 1845, s 1858
unfair surprise as groimds for ' 1845
chancery 1846
policy of the rule 1847
exceptions to the rule
list of witness in criminal cases 1874, s 1850-1855
list of witnesses in criminal cases 1874, s 1850-1855
discovery in chancery s 1856, s 1857
from officer of corporation note eight a 1856
in Federal courts under State statute note ten s 1856
under Federal statutes note ten s 1856
statutory interrogatories to opponent 1847, s 1856
discrediting opponent's character by his own interrogatories note eight S 1856
names of witnesses in civil cases S 1856
documents inspected before trial 1847, s 1857-1860
corporate and manorial records s 1858
documents subject to common interest or trusteeship s 1858
stockholder's remedy mandamus or discovery note four s 1858
of insurance documents s 1858
which party may make copy of document ...... note fourteen 18B&
against third person not a party s 1859
of sundry documents s 1859
failure by affidavit to deny execution of document s 1860
shown on cross-examination S 1861
inspection makes evidence s 1861
exclusion for failure to allow inspection s 1210
r premises, chattels, and body, inspected before trial .... 1847, s 1862
from opponent in chancery at the trial s 2218
under statutes s 2218
under client's privilege 2318
see also Chancery.
[Examine analysis of " Preliminary Notice, or Discovery, to the Op-
ponent," Vol. Ill, p. 2398.]
Discretion of the trial court; see Judicial Discretion.
Disease, speciftc tendency of, shown by symptoms s 457
subsequent, to evidence prior 168
see also Illness. .
Disgracing Answers, privilege against s 984-987, 2216, 2255
Disinheritance, as evidence of testator's insanity s 229
parol evidence of intent s 2475
Disorderly house; see Hottsb op Ill-fame
Disqualification, by reason of interest s 576
mode of ascertaining . ^ 583
time of interest to cause 583
burden of proving s 584
mode of proving 585
time of objecting to s 586
834
INDEX OF TOPICS
IFigures set thua: 1678 refer to main treatise; 1878 (italics) refer to supplement; S 1678 refer to both. J
Section
Disqualification {continued).
judge determines 687
of party charged in same indictment . . . . ' .....& 580
of survivor against deceased s 578
of declarant, under exceptions to Hearsay rule 1761
of wife by marriage subsequent to crime note Jour 60S
by conviction of crime; see Conviction of Crime.
Distance, of a weapon, as shown by effects s 457
of a person, sound, sight, etc., as shown by instances s 460
as excusing absence of an attesting witness s 1312
of a deponent 1407
opinion testimony to s 1977
of witness' residence exempting from attendance s 2207
judicially noticed s 2581
Divorce, as qualifying wife as witness s 610
evidence of adultery of co-respondent in .... - s 68
connivance with co-respondent in s 391
as affecting marital privilege s 2237, s 2341
one witness to a charge . s 2046
corroboration required of detective's and prostitute's testimony in . . s 2066
confession of respondent s 2067
eye-witness of marriage s 2085, s 2086
marriage celebrant's certificate not preferred to eye-witness s 2088
inspection of party, on charge of impoteney s 2220
presumed, to validate a later marriage s 2506
Docket, original's production required s 1215, 1217
certified copy allowed s 1681
conclusive s 2450
is not a record note seven 2450
Docmnent, misuse of motion to " strike out " note seventeen 18
possession of, as evidence of payment 156
execution or delivery, as evidenced by possession of it s 157
possession of, as evidence of knowledge s 260
failure to object to admission of, admits genuineness and authority to
execute note twenty seven 18
failure to produce, as evidence of contents s 291
as inference of non-existence s 291
concealment of s 291, s 1198, 1199
destruction of, as evidence of contents s 291
alteration of, as avoiding 1198
marks on, as evidence of identity 415
impeaching one's own 529
requirement of two impeaching witnesses in Pennsylvania s 2054
execution of, witness' personal observation of 666
proof of genuineness by handwriting; see Handwriting.
of predecessor, as quaUfying a witness to handwriting s 704
third person, as party's admission s 1073
used to aid recollection; see Recollection.
showing to opponent before cross-examination s 1861
to witness on cross-examination 1185
right to require proponent to show, to opponent s 1861
original must be produced; see Original Document.
dying declaration reduced to writing S 1445, s 1450
kinds of copy allowed or preferred; see Copy; Certified Copy.
execution proved by attesting witness; see Attesting Witness.
by other methods; see Execution.
putting in on direct or cross-examination 1883, s 1884
impeachment of witness who proves s 1893
discovery of, before trial; see Discovery.
835
INDEX OF TOPICS
[Figures set thus: 1678 refer to maia treatise; 1678 (italics) refer to supplement; s 1678 refer to bothj
Section
Document {continued).
taken to jury-room s 1802, 1913
expert testimony to
alterations 2027
date 2027
decipherment ... 2025
erasures 2027
forgeries . . s 2026
imitations . • s 2026
ink S2024
paper s 2024
spelling s 2024
putting in the whole
sundry instances ■ s 2102, s 2116
depositions s 2103, 2111, s 2115
separate documents s 2104, s 2120
lost deeds, etc. ; abstracts s 2105
lost wills s 2106
public records ... 2107
judicial records . . . s 2110
biU and answer in chancery 2111
account-books . . . s 2118
chancery answer, responsive parts 2121
presumed genuine in official flies . . s 2158
answers to interrogatories s 2124
document inspected by opponent 2125
authentication of . "... . 2129
authenticated by circumstantial evidence s 2131
authentication unnecessary s 2132
put in by cross-examiner note fioe 2125
discrimination between principles affecting execution of 2133
signature to, not always necessary to charge execution s 2134
self-criminating, illegally seized S 2183
obtained by illegal search s 2183
lacking revenue-stamp s 2184
privilege for title-deeds 2211
documents held under a hen s 2211
trade secrets s 2212
production by opponent at trial s 2219
by witness S 2193, s 2200
by one who has control of s 2200
by corporation s 2200
imder self-crimination privilege s 2264
inference from withholding S 2264
under client's privilege 3 2307-2309, 2318
opponent not entitled to see, imtil admitted s 2200
ambiguity in s 2472
parol evidence rule binds parties only s 2446
burden of producing, under parol evidence rule 2447
parol evidence to vary terms; see Parol Evidence Rule.
delivery of, having a blank s 2410, 2419
possession of, as presuming payment 3 2518
spoliation of, as creating a presumption 2624
admission of execution of s 2132, s 2596
presumption of alteration s 2525
consideration s 2520
date 3 2520
delivery 3 2520
execution 2519
836
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Document {.continued).
loss s 2522
signature s 2520
liability on alteration of 2419
interpretation of
by expert testimony to teohnical words s 1955, s 1956
for the court s 2556
by parol evidence; see Parol Evidence Rule, D.
affidavit denying- genuineness of s 2596
see also Contract; Deed; Execution of Document; Judicial
Record; Original Document; Public Document; Recorded
Conveyance ; Will.
[Examine analyses of "Verbal Completeness," Vol. Ill, p. 2819;
and " Parol Evidence Rule," Vol. IV, p. 3367.]
Dog, character of, as evidence s 68
recognition by note two 177
conduct of, in tracing an accused s 177
as evidencing disposition s 201
see also Animal; Bloodhound.
Domain, inquisition of s 1670
Domicil, declarations of, by a voter s 1712
by other persons . ' S 1727, s 1784
presumed to continue s 2530
Doubt, proof beyond a reasonable s 2497
Dramatic expression by a witness s 789
modes of testifying note three 1157
see also Exhibition.
Drawee, parol agreement collateral to instrument 2443
see also Bill of Exchange.
Drawing, used to illustrate testimony 790
Drinking; see Intoxication; Intemperance; Liquor; Liquor-selling.
Driving a vehicle; see Vehicle; Negligence.
Drug, specific tendency of a s 457
see also Poison; Pharmacist; Opium.
Drunkenness; see Intoxication; Intemperance; Liquor; Liquor-selling.
Duces tecum; see Subpoena.
Dumb person; see Deaf-mute.
Duplicate original document, production of s 1232
■ distinguished from copy 1231
Duress making acts voidable s 2423
admissions under 1050
see also Confession.
Dying Declaration
constitutionality of admitting s 1398
history and principle 1430, 1431
restricted to certain criminal cases s 1432
of woman in abortion s 1432
death must be declarant's s 1433
subject of declaration • • s 1434-1435
necessity principle does not limit use of, to absence of other evidence . s 1436
consciousness of speedy and certain death s 1438-1442
subsequent confirmation of incompetent s 1439
certainty of death, not possible or probable death s 1440
actual period of survival immaterial s 1441
theological belief 1443
manifested revengeful feelings in 1443
recoUeetion, leading questions, etc s 1445
declarant must be competent as witness s 1445
may be communicated in any manner s 1445
837
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Dying Declaration {continued). (
impeachment s 1033, s 1446
opinion rule s 1447
cut short by death or intruder s 1448
producing the whole s 1448, s 2099
the original 1449
written statement not preferred 1332, s 1450
written report of magistrate s 1450
reducing to writing s 1445, s 1450
judge and jury . . s 1451
accused may use s 1452
[Examine analysis of " Dying Declarations," Vol. II, p. 1798.]
E
Keclesiastical Courts, rules of evidence in s 2032, 2045, s 2067, s 2250
EfEect of a machine, place, weapon, experiment, etc., as evidencing the cause or
origin s 437-461
Ejectment; see Deed; Title; Possession; Common Soubce of Title.
Election, offences against, other acts evidencing intent s 367
certificate of, conclusive .... . s 1351
books of, as evidence s 1640
results of, judicially noticed s 2577
see also Vote; Ballot.
Electric Wires; see Negligence; Machine; Highway.
Elevator, former instances of injury or negligenofe . . . S 252
defective; see Negligence; Owner; Machine.
Embezzlement, possession of money, as evidence of s 154
other embezzlements, as evidence of intent 329
motive for s 392
Embracery; see Bribery.
Eminent Domain, view by jury in s 1168
Employee, character of, to evidence neghgenoe s 65
character of, as affecting employer's liability s 80, s 249
intemperance of, as constituting incompetence 96, s 203
acts of negligence, to evidence character s 199, s 208
to evidence employer's knowledge s 250
unfair surprise in showing negligent acts of s 208
on vehicles, bridges, etc., standard of conduct of s 461
as a biassed witness s 949, s 969
appearance of, as indicating competence s 1154
presumption of negligent injury to s 2509
Employer's Liability, character of employee as affecting s 80, s 249
Engine; see Sparks; Machine; Speed.
Enlistment, register of, as evidence s 1641
Enrolment, of a statute, whether conclusive s 1350
of a deed; see Recorded Conveyance.
of a judicial proceeding; see Judicial Record.
Enticement for prostitution, character of complainant to show consent ... s 62
other offences as evidence of intent 349, 360
Entry, in a book, to aid recollection; see Recollection.
made by a public officer; see Public Document.
in docket or minutes; see Judicial Record.
as a statement of facts against interest; see Against Interest.
made in the course of business; see Regular Entries.
Equivocation in a document s 2472
Equity, rebutted by declarations of intent . . . , s 2475
procedure in; see Chancery.
rules in, distinguished from rules at law . s 4
S38
INDEX OF TOPICS
[Figurea set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.J
Section
Erasure, expert testimony to 2027
Error, impeaching a witness; see Contradiction.
of ruling, as ground for new trial s 21
Escape, as evidence of guilt s 276
refusal to, as evidence of innocence s 293
Escheat, inquisition of ., s 1670
Escrow, shown by parol evidence s 2408, s 2420
Estoppel, distinguished from an ordinary admission s 1056, s 1058
from a judicial admission 2589
Evidence, defined 1
distinguished from argument 1
from substantive law, and pleading 2
rules of, whether alterable by the Legislature s 7
admissible for one purpose but not for another 13
conditionally on other facts being shown 14
even after jury has retired s 1880
explaining away 32-35, 239
. inadmissible, when received, is not to justify other inadmissible evidence
s 15
offer of and objection to, mode of making s 17, s 18
misuse of motion to " strike out " note seventeen 18
ruling upon an objection to '. s 19
erroneous exclusion cured by subsequent admission note three 19
circumstantial and testimonial, distinguished 25
circumstantial may be proved by circumstantial 41
presence of articles as corroborating s 149
what is " corroborative " 2062
fabrication of, as indicating guilt s 278
to be weighed by probability, not possibility note two 235
failure to produce, as indicating a weak case s 285-291
as indicating unfavorable tenor s 285
distinction between impeaching and rehabilitating 880
length no ground for exclusion , 1864
incompetency of, cannot be waived for infant defendant .... note one 1063
order of presentation changed by court s 1867
in rebuttal, advanced by anticipation s 1869
manufacturing • s 1732
" best evidence " rule 1173
primary and secondary 1175
secondary, are there degrees of s 1268
■prima fa^ie s 2494
sufficient for jury ' s 2494
motion to exclude aU note three 2495
preponderance of s 2498
procured by illegal search or seizure s 2264
demurrer to S 2495
judge's right to determine sufficiency and admissibility . . . . ^ . s 2550
order of, in general 1866
between co-defendants note one 1872
illegally obtained s 2183
justifiable trespass in securing iwte one 2221
order of topics of, in trials; see Examination.
primary; see Best Evidence; Original Document.
conclusive; see Conclusiveness.
weight of; see Weight.
circumstantial; see Circumstantial.
see also Offer.
Examination of Premises, chattels, etc.; see Discovery; Party's Privilege;
Real Evidence.
839
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.}
Section
Examination of Witness
I. Before a Magistrate
II. Right of Cross-examination
III. Order of Examination at Trial
(a) in general
(b) putting in the case at large
(c) after case closed
(d) examination of a witness on the original call
(e) recall
rV. Sundries
I. Before a Magistrate
magistrate's report of former testimony, whether required s 1326 et seq., a 1349
whether admissible 1667
former testimony before, without cross-examination s 1375
dying declaration under oath S 1450
testimony proved
by magistrate's report 1667
by stenographer's notes s 1669
see also Deposition.
II. Right of Cross-examination; see Cross-examination, I.
III. Order of Examination at Trial
(a) in general
trial court's discretion controls S 1867
length of time immaterial 1864
(b) putting in the case at large
case of proponent in chief
order of topics 1870
party testifying first s 1870
facts conditionally relevant s 1871
matter without prima, facie relevancy s 1871
rejected matter later relevant note two S 1871
irrelevant questions on cross-examination s 1871
reading documents 1883
case of opponent in reply s 1872
calling witness during proponent's case 3 1872
case in rebuttal, in general s 1873
before opponent closes s 1872
limitations on evidence in rebuttal s 1873
anticipation of case in rebuttal s 1873
case in surrebuttal S 1874
later stages 1875
(e) after case closed
one ease closed 3 1876
evidence admitted after ease closed 3 1876
both cases closed 3 1877
argument begun 3 1878
charge given s 1879
jury retired S 1880
verdict rendered 1881
(d) examination of a witness on the original call
direct examination 1883
putting in documents 1883
cross-examination 3 1884
postponement s 1884
two or more opponents s 1884
offering documents 3 1884
putting in one's own case s 1885-1891
see also Cross-Examination.
whose is the witness 1892
840
INDEX OF TOPICS
[Figures aet thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.I
Section
Examination of Witness {continued).
re-direct examination s 1986
re-cross-examination 1897
later stages 1897
(e) recall
for re-direct examination 1898
for re-cross-examination s 1899
IV. Sundries ^
effect of death or illness preventing cross-examination s 1390
refusal to answer on cross-examination s 1391
non-responsive answer s 1392
of opponent or witness before trial; see Discovery.
at a former trial, used to aid recollection; see Recollection.
mode of putting questions on; see Question to a Witness; Cross-
examination.
see also Direct Examination.
specific topics on direct examination; see Direct Examination.
specific topics on cross-examination; see Cross-Examination.
confession made under oath on; see Confession.
of a party as witness; see Witness.
admissibility of prior examination; see Deposition; Former Testimony.
[Examine analysis of " Order of Evidence," Vol. Ill, p. 2459.]
Examined Copy; see Copy.
Exception to a ruling upon evidence, mode of taking s 20
biU of, must exhibit grounds of objection s 17, 18
purpose of an S 20
distinction between objection and ' s 20
must be in writing S 20
must be immediately after ruling s 20
what formal statement of, must contain s 20
bill of, as evidence of testimony 1668
Excitement; see Mental Condition, Declarations of; Spontaneous Ex-
clamations.
Exclamations of/pain or suffering s 1719
as res gestce of violent injury 1745
Execution of Document
In general
I. Modes of proving Execution
(a) by age
(b) by contents
(c) by official custody
(d) by seal
(e) by other modes
II. Sundry Rules
In general
general principle s 2129-2139
proof not needed when execution admitted s 2131
whether signature or contents is involved s 2134
rule of presumption . . . .' 2135
I. Modes of proving Execution
(a) by age
general principle ^lcJ7
thirty years old s 2138
periods between which age is reckoned s 2138
natural custody s 2139
unsuspicious appearance S 2140
possession of the land s 2141, 2142
recorded deeds and old copies s 2143
authority to execute 2144
841
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) ^refer to supplement; s 1678 refer to both.]
Section
Execution of Document (continued).
kinds of documents s 2145
presumption; statutory denial s 2146
attesting witness dispensed with s 1311
(b) by contents
in general s 2148
illiterate's letter; typewriting s 2149
printed matter 2150, 2151
postmark; brand s 2152
reply-letter by mail s 2153
reply-telegram s 2154
reply-telephone s 2155
identity of name 2156, s 2529
(c) by official custody
judicial records and flies s 2158
sundry official records s 2150
(d) by seal
general principle ' 2161
statutory regulation s 2162
seal of State 2163
seal of court or clerk S 2164
seal of notary S 2165
sundry official seals 2166
official signatures s 2167
official title s 2168
corporate seal s 2169
(e) by other modes
by handwriting; see Handwriting.
by possession 3 157
by parties' belief 271, 272
by opponent's admission s 2132, s 2596
by spoliation' . s 2132
by sundry circumstantial evidence s2131
by presumption s 2135
by attesting witness; see Attesting Witness.
by certificate of acknowledgment; see Certificate.
by certified record-copy; see Cebtipied Copy; Recorded Conveyance.
of a will, by testator's belief 271
by testator's expressions 1734
by record of probate s 1658, s 1681
II. Sundry rules
production required, even though execution is presumed 1187
execution must be proved, though original is lost 1188
execution provable, without producing original 1248
order of proof as between execution and loss 1189
calling the attesting witness; see Attesting Witness,
writer not a preferred witness s 1339
written statements against interest 1472
pedigree entries s 1496
showing document to opponent before cross-examination s 1861
[Examine analysis of " Authentication of Documents," Vol. Ill, p. 2887.]
Execution, of Judgment; see Judicial Record; Sheriff.
Executive, acts of, proved by certified copy s 1680
by printed copy 3 1684
privilege of, in substantive law 2368
as witness 2370
not to attend court 2371
Executive officer, conclusiveness of certificate of 3 1354
Executor, admissions of s 1076, s 1081
842
INDEX OF TOPICS
tFigures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement;' S 1678 refer to both.]
Section
Executor, rebutting intention of gift to s 2475
waiver of client's privilege by s 2329
of patient's privilege by s 2391
Exhibition of weapons, bloody clothes, etc., to jury s 1157
of corporal injuries in civil oases s 1158
of indecencies , s 1159
Exhumation of corpse, to obtain evidence t862, 2194, ^^^0
Existence of whole inferred from part s 348
concurrent s 438
Ex parte proceedings, rules in, distinguished s 4
see also Affidavit; Deposition.
Expectancy of life; see Life.
Expedients ; see Deed.
Expenses of witness, tender of s 2201
amount of " 2202
expert witness s 2203
Experience, capacity of i . s 555-571
opinion rule distinguished . . . , 557
observation and knowledge distinguished 558, 650, 651
grade of, necessary s 559-561
determined by judge s 561
how established s 562
expert testifying to another's competency s 562
method of securing unbiassed experts S 562
quaUflcation of, on value s 711-721
special training or occupation unnecessary to estimate value 712
impeaching of witness for lack of 938
[Examine analysis of " Experiential Capacity," Vol. I, p. 667.]
Experiment, as evidence of planning crime s 238
distinguished from observation 445
of the quality or condition of a thing 445, s 660
to test a witness' knowledge or skill . . 993
as allowable in court s 1154, s 1160
Expert Capacity, distinguished from opinion rule 557
Expert Witness
1. Qualifications
2. Impeachment
3. Sundries
1. Qualifications
general requirements s 555-561, 1923
stating the grounds of opinion s 562, s 655
foreign law 564, 566, s 690
custom and usage 565
value 567, 711
medical matters (sanity, blood, etc.) s 568, s 687
handwriting and paper money . : . . . s 570, s 693, 705, s 1991-2027
to alteration s 570, 2027
sundry topics of testimony s 571
mode of securing unbiassed experts s 562
reputation to prpve qualifications s 1621
see also Knowledge; Physician.
2. Impeachment
by another expert s 562, s 1984
by cross-examination to instances of unskilfulness s 991
by contradiction on particular facts s 1005, s 1022
by reputation s 1621
see also Impeachment; Cross-examination, IV.
3. Sundries
failure to call, as evidence of a weak case s 290
843
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Expert Witness {continued).
cross-examination to other sales as evidence of value s 463
improbabilities in scientific testimony s 662
intrusion of the court on s 662
comparison of handwriting by 709
proving voluminous records by summary S 1230
testimony to forgery of bank-note s 1339
ex parte investigations out of court S 1385
may testify from both observation and hypothetical questions . . . 678
hypothetical questions to; see Hypothetical Question.
testimony by quotation of scientific books s 1700
tested on cross-examination s 1700
opinion of, as to cause of condition 8 1976
on alterations 2027
date . ■ 2027
decipherment 2025
erasures 2027
forgeries s 2026
imitation S 2026
ink s 2024
paper s 2024
spelhng s 2024
inspection of injured person by S 2220
limitation of number of 1908
proposed reforms in the mode of using expert testimony s 562
amount of fee demandable by s 2203
see also Opinion Rule; Fees.
[Examine analyses of '■' Experiential Capacity," Vol. I, p. 667; and
' " Opinion Rule, as Applied to Handwriting," Vol. Ill, p. 2647.]
Explanation, logical principle of 32
of traces of blood 34, s 149
of presence of incriminating articles s 149
of flight as evidence of guilt 277, 281
of suspicious conduct 281
of possession of stolen goods 1143
Explosion, cause of, as evidenced by its efl'ects s 437-461
Ex post facto law, prohibition of, as affecting rules of evidence s 7
Exposure, other offences of indecent, to prove intent 360
Express package, deUvery of, as evidenced by course of business S 95
Extortion, other offences as evidence of intent 352
Extrinsic Testimony, rule for, as distinguished from cross-examination . . . 878
to prove bias of a witness 943
to prove crimes or other misconduct of a witness 979
to impeach witness 977, note one s 987
to prove errors 1001
to prove self-contradiction 1020
Eye-witness, called by the State, may be impeached s 918
of a crime, required to be called 2078
preferred in various instances s 1339
required in bigamy s 1604, S 2085
in criminal conversation s 2085
not required when proof is by admissions of marriage s 2086
not required in civil cases s 2086
marriage celebrant's certificate not preferred to s 2088
F
Fabrication of evidence, as indicating guilt s 278
Fact, law distinguished from 1
844
INDEX OP TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Fact, not in issue, distinguished from facts not admissible 2
certain questions of, determined by judge s 21
meaning of " collateral " 39
external, as evidence 191
a feeling is a 1716
presumption of s 2491
jury or judge to determine 2549
Factory; see Employee; Negligence; Premises; Machine.
Factiun probandum, distinguished from factum probans 2
Failure to prosecute or complain ^ s 284
to produce evidence, s 285-291
to object to evidence s 18
to speak or claim, as a seU-contradiotion s 1042
as an admission s 1071
to reply to a letter, as an admission s 1073
Falsa demonstratio non nocet 2476
False Arrest; see Arrest.
False Claim, of cause of action, mode of evidencing intent s 340
as impeaching a witness s 963
False Pretences; see False Repi^esentations.
False Representations, repute as evidence of knowledge s 256
other false representations as evidence of intent 320
Falsehood, as evidence of guilt s 278
as impeaching a witness s 963, 1008
Falsity, by party in course of litigation s 278
knowledge of, in similar acts 317, 320
in value of importations s 341
of statement not admissible to show statement not made s 391
of representations as to credit s 256
as impeaching a witness; see Contradiction; Falsus in uno; Perjury;
Self-contradiction.
Fsdsus in uno, general principle 1008
falsity must be wilful and material s 1013, s 1014
Family, insanity of, as evidence ; s 232
Family History, statements about, exception to the Hearsay rule 1480
death of decl?.rant s 1481
ante litem motam s 1483
personal knowledge of the facts by declarant not necessary . . note one s 1486
exactness in detail not necessary note one s 1486
declarations by non-relatives 1487
by neighborhood-reputation ^ 1488
by different sorts of relatives s 1489
proof of relationship s 1490, s 1491
illegitimate child s 1492
own age "o's two 1481, s 1493
identification by s 270, s 413, 1494
form of declaration (Bible, wiU, etc.) 1495
proving the writing s 1496, 1497
place of birth, death, etc 1500
issue of pedigree s 1503
age, other modes of proving; see Age.
ancient deed's recital of pedigree s 1573
Family Relationship, as biassing a witness s 949
as raising presumption of gratuity s 2526
Father, reputation of, as mitigating damages in seduction s 75, 210
presumed instead of son, from identity of name s 2529
statements of, to evidence pedigree; see Family History.
testimony to bastardy 3 2063
see also Bastardy; Legitimacy; Mother.
845
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.}
Section
Federal Law, conflict between State law and s 6
judicially noticed s 2573
requiring full faith and credit s 1681
Federal Record-copy, sufficiency of note thirteen 1681
Feelings, expressions of 1718, s 1730
are facts 1716
see also Bias.
Fees of witness, tender in advance s 2201
amount of 2202
expert witness s 2203
under Scotch law ' note one ^203
Fellow-servant; see Employee.
Felony, as disqualifying or impeaching a witness; see Conviction op Crime.
Fence, erection or removal of, intent shown by utterances S 1777
Fence Viewers, findings of a jury of s 1672
Fictitious Person, evidenced by failure of search . . . ! 168, 667
Fifth Amendment; see Fourth Amendment.
Files; see Judicial Records; Public Documents.
Finger-prints as evidence of identity 149, 413
Fire; see Arson; Sparks; Premises.
Fire Insurance ; see Insurance.
Fleet Marriage Register, history of s 1644
Flight, as evidence of guilt 32, s 276, 281, note four s25U
Flowage of water, other instances as evidence s 451
Food, effect of, as indicating nature or quantity s 457, s 460
Footprint, as evidence of identity ' s 413
compelling defendant to make S 2265
Foreign Language; see Interpreter; Alien.
Foreign Law, when applicable in its rules of evidence s 5
distinguished from lex fori s 5
proved by expert witness 564, 566, s 690, s 1953
knowledge of, as based on study alone s 690
proved by treatises s 1697
production of statute by expert witness note four 1697
experience necessary to testify to note four 1697
statute proved without copy s 1271
copy preferred to recollection s 1271
proved by official printed copy s 1684
crime by, not privileged s 2258
similarity of, presumed s 2536
judge or jury to determine s 2558
not judicially noticed s 2573
Foreign Officer, document made by s 1633
Foreman, entries of, to aid recollection; see Recollection.
character and conduct of, as employee; see Employee.
Forfeiture, privilege not to disclose s 2256
Forgery, of a will, character of a third person as evidence of s 68
skill in handwriting, as evidence of ... s 87
possession of materials, as evidence of s 153, s 238
of evidence, as indicating guilt S 278
other forgeries, as evidence of intent 309
forms of offence connected with 309
evidence of a motive for s 392
of identity s 413
proof of, without producing document s 1249
notice to produce original document 1205
testimony of person whose name is forged, not required s 1339
proved by expert s 1339
of bank-notes, evidence of intent s 318
846
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Forgery {continued).
incorporation proved by repute s 1625
affidavit of bank-offlcer s 1710
expert testimony to handwriting in .... / s 2026
presumed from uttering t . . .' . . note two 2520
Former Testimony offered in impeachment, as a self-contradiction . 1030, s 1032
failure to mention facts in, as contradiction of present testimony note twelve
1072
death, absence, etc., as allowing the use of s 1403-1418
used as an admission s 1075
magistrate's report preferred s 1330, s 1349
issues and parties the same 1386
'mode of proving
, judge's notes 1666
magistrate's report s 1330, s 1349, 1667
bill of exceptions 1668
stenographer's notes s 1669
juror's notes s 1669
attorney's notes s 1669
printed report 1703
answering by referring to, of another 787
memorandum to aid recollection; see Recollection.
whole must be proved s 2098, s 2099, s 2103
may be proved . . . s 2115
statutes affecting s 1413
Fornication, under age of consent note one 357, 402
prior and subsequent conduct in S 398
see also Adultery; Criminal Conversation; Prostitution.
Foundation, laying a, for impeaching by self-contradiction; see Impeachment.
for using a copy of a document; see Original Document.
in general s 654
waiver of laying s 654
must show knowledge founded on personal observation by the senses . . s 657
Fourth Amendment
does not prevent use of documents and chattels obtained by search warrant
s 2264
as affected by Fifth Ainendment, on admission of documents .... a 2264
Fraud, by a party or agent, as evidence of a weak case s 280
transfers as evidence of ■ 333
as evidence of intent s 341-344
similar acts of s 340
confession obtained by s 841
as impeaching a witness s 963
privilege against seU-crimination in' s 2257
not all civil fraud is criminal note eight s 2257
making acts voidable s 2423
under the parol evidence rule s 2432, s 2439
Pennsylvania rule in varsdng terms of document 2431, note one 2442
degree of proof of s 2498
presumed from grantee's confidential relations s 2503
in concealment by husband in an ante-nuptial agreement s 2526
in insurance; see Insurance.
Frauds, statute of; see Statute op Frauds.
Fraudulent Transfers, other transactions as evidence of intent 333
indicated by various circumstances 335
admissions of debtor or creditor s 1082-1087
opinion evidence of intent s 1967
presumptions applicable to s 2504
Fright of horses, as evidence of dangerous object s 461
847
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.J
Section
G
Gaming, other acts as evidence of intent s 367
advertisement, or possession of apparatus or license as evidence of plan . . s 238
premises leased for, proved by repute of house ^54
conclusive evidence of, under statute s 1354
Gas; see Nuisance; Expert Witness.
Genealogy proved by family hearsay; see Family History.
proved by reputation of community; see Reputation.
General Character; see Character.
General Interest, matters of; see Reputation. '
Genuineness, of a document; see ]>ocument.
Gestation, intercourse within the time of, in bastardy s 133
in adultery note three 2527
Gesture, as a mode of expression for a witness s 789
Gift, plans, as evidence of s 112
declarations of intent to evidence a note three 1725
words accompanying s 1777
presumption of s 2526
see also Deed.
Girl; see Child; Rape; Seduction.
Good Faith; see Knowledge; Motive; Intent.
Goods; see Chattels; Business; Value. -
Government, land-grant of; see Deed.
records of; see Public Document.
privilege for communications to ' s 2374
Grand Jury, witnesses before, indorsed on indictment s 1850
right to compel answers s 2252
testifying before, as a waiver of privilege s 2276
privilege for vote and opinion s 2360
for witness' testimony 2362
cessation of privilege 2362
admissions before, not privileged s 2363
not to impeach indictment 3 2364
Grajit, presumption of lost s 2522
of land, from government s 1225, s 1239
see also Deed; Grantor; Grantee.
Grantee
from an insolvent, lunatic, thief, etc., repute as evidencing knowledge of
s 253-255
grantor's admissions, used against s 1082
producing original deed of 1224
utterances in possession, used against creditor s 1779
assent of, as necessary to pass title note Jour s 2408
deed deUvered in escrow to s 2408, 5 2420
presuming fraud from confidential relations of s 2500
presuming identity from name s 2529
Grantor, admissions of s 10S2
declarations of, to show intent note three 1725
opinion testimony to capacity of s 1958
burden of proof of sanity of s 2500
see also Grantee.
Guardian, admissions of s 1076
personal Uability of one who signs as s 2444
Guardian ad litem, authority of counsel for 106S
Guilt, failure to prove an alibi as evidence of s 279
conduct when under arrest to show s 273, s 276, s 1072
evidenced by concealment s 276
by bribery s 278
848
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Guilt {continued).
by fabrication of evidence s 278
by destruction of evidence s 278
by flight 277, 281
by escape s 276
negatived by refusal to escape s 293
see also Defendant; CoNsciotrsNEss op Guilt.
Guilty, plea of, as admission in civil case s 815
Gun; see Weapon.
Habeas Corpus ad testificandum s 2199
Habit, as evidence of doing an act 92
distinguished from character 92
of private person s 95
of commercial house s 95
of express carrier , S 95
of telegraph company s 95
as evidence of not doing an act 97
of recording 97
carefulness of note one S 93
particular instances to evidence careful or careless s 199, s 376
as evidence of marriage 268
of other persons, as evidence of care s 461 •
as a source of aiding recollection of a witness s 747
see also CtJSTOM.
Habitual Criminal, prior convictions as increasing sentence s 196
Handwriting
I. Style of
II. Qualifications of Witness to
(a) in general
(b) by seeing the person write
(c) hy seeing kriown genuine documents
(d) by expert comparison of hands
(e) expert testimony
III. Sundry Topics
I. Style of, to evidence authorship of a document i
general theory 99, 383
traits of, as evidencing authorship 99
jury's perusal of specimens
kinds of documents s 2016-2018
press-copies 2019
photographic reproductions s 797, 2010, 2019
mode of proving genuine s 2020, s 2021
see also Typewriting.
II. Qualifications of witness to
(a) in general ,
by experience s 570
identifying an illiterate's mark note two s 693
(b) by seeing the person write S 694-697
number of times s 694
how long beforehand 695
quantity of writing 696, s 707
specimens written after suit begun 697, s 707
after-acquired knowledge 697
- impression or belief 698
opinion must be based solely on the writing 698
849
INDEX OF TOPICS
[Figures set thus: 167S refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.}
Section
Handwriting {continued).
(c) hy seeing known genuine documents S 699-708
express or implied admissions 700, s 701
acting on the document s 270
correspondence seen s 702
clerks seeing accounts, etc 703
custodian seeing records, etc s 704
signatures used to frank letters note one 704
bank-notes and paper money 705
, number and time of specimens seen 707
(d) hy expert comparison of hands
general principle 709
evidencing genuineness of specimens 709
history 1991-1994
lay witness excluded 1997, s 2004
exception for act of writing seen 2005
for ancient documents 2006
refreshing the memory 2007
(e) expert testimony, whether admissible s 2008
selection of specimens 2009, s 2018
specimen conceded genuine 1999, 2000
genuineness left to court 2000
specimens limited to documents in case 1999, 2000
photographic copies s 797, 2010
studying the specimens . . 2011
kind of skill required s 2012
mode of proving specimens 2013
giving the grounds of belief 20l4
testing on cross-examination s 2015
III. Sundry Topics
proof of, by admissions 2013, s 2021
ink, paper, spelling, etc s 2024
deciphering illegible writing 2025
imitations, forgeries s 2026
normal or disguised note three 2026
erasures 2027
alterations 2027
time of writing 2027
instrument used 2027
defendant's skiU in imitating, as evidence of forgery s 87
reference to, in aid of recollection; see Recollection.
effect of proving attesting witness' or maker's hand; see Attesting
Witness
[Examine analyses of '^ Testimonial Knowledge, 4," Vol. I, p. 745; and
" Opinion Rule, as Applied to Handwriting," Vol. Ill, p. 2647.]
Health, as evidenced by appearance s 223
prior condition of s 225
witness' experience as qualifying him s 568
Hearing a sound, instances of s 460
Hearsay, as the basis of a witness' knowledge s 567, s 688
knowledge founded on, exceptionally admitted s 665-670
offleial records s 665
scientific instruments and tables s 665
execution and contents of documents not personally observed 666
testifying to own age, or another's name s 667
conversation through interpreter 668
information over telephone s 669
testimony of deceased or absent persons 670
nature of 1361
850
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to stipplement;' S 1678 refer to both.]
Section
Hearsay Rule
I. General Principle
(a) cross-examination
(b) confrontation
II. Exceptions to the Rule
III. Rule not applicable (Res Gestae)
(a) words a part of the issue
(b) words a verbal part of an act
(c) words used as circumstantial evidence
(d) res gestce '
IV. Rule applied to Court Officers
I. General Principle 1361-1363
history 1364
(a) cross-examination, right of
theory and art s 1367, s 136S
opportunity, equivalent to actual cross-examination s 1371
sundry tribunals s 1373
coroner '. s 1374
committing magistrate s 1375
dep'osition s 1376-1383
notice s 1378
plural taking s 1379
statutes s 1380-1383
affidavit s 1384
ex parte investigations, etc s 1385
issues and parties the same s 1386-1388
either party may use deposition s 1389
insufficiency of cross-examination s 1390-1393
witness' death or illness s 1390
■witness' refusal or party's default s 1391
non-responsive answer s 1392
sundries . . . .' s 1393
(b) confrontation, right of
absent witness' testimony, in general 1395
constitutional requirement 1397
witness unavailable in court s 1401-1418
deceased 1403
out of jurisdiction s 1404
not found s 1405
iU 1406
imprisoned 1407
privileged 1407
beyond statutory distance i 1407
insane . . . . ' 1408
dibqualifled s 1409
statutes 1410-1413
proving the excuse s 1414
witness present in court s 1415
rule not applicable s 1416
exceptions to the rule of confrontation s 1417
II. Exceptions to the Rule, general principle of 1420-1426
declarant must have usual testimonial qualifications 1761
disquaUflcation of declarant; see Declarant.
of spouse; see Marital Relationship.
of oath capacity; see Oath.
dying declarations; see Dying Declarations.
facta against interest; see Against Interest.
pedigree statements; see Family History.
attesting witness; see Attesting Witness.
851
T
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to both.]
Section
Hearsay Rule {continued).
entries in the course of business; see RbguLab Entries.
private boundaries; see Boundaries.
ancient deed-recitals; see Recitals.
deceased persons in general; see Deceased Persons.
reputation; see Reputation.
public documents, ofi&cial statements; see Public Documents.
scientific books; see Learned Treatises.
price-lists, directories, etc.; see Commercial Lists.
affidavits; see Affidavit.
voter's statements; see Voter.
mental condition, physical pain; see Mental Condition.
res gestm; see Res Gtest^.
III. Rule not applicable {Res Oestce) s 1786-1797
fact of utterance in issue, rule not applicable 1768
truth of utterance in issue, rule applicable 1768
(a) words a part o} the issue
contract, libel, etc s 1770
(b) words a verbal part of an act s 1772-1786
general principle . . . . " 1772-1776
acceptance s 1777
advancement s 1777
agency s 1777
consideration s 1777
conversion s 1777
dedication s 1777
delivery s 1777
entry s 1777
gift s 1777
larceny s 1777
loan s 1777
payment s 1777
sale c ; . . s 1777
sundries s 1777
possession, in prescriptive title s 1777
in presumption of ownership s 1083, s 1779
accused foimd with stolen goods s 1781
testator revoking a will s 1738
bankrupt evading creditors 17S2
domieil s 1784
accused's intent 1785
(c) words used as circumstantial evidence 1788-1792
in proving search for lost document s 1196
third person's knowledge 1789
belief 1789
diligence 1789
good faith 1789
insolvency 1789
motive 1789
reasonableness 1789
sanity 1789
vieiousness, etc 1789
speaker's state of mind I79O
identifying a time, place, or person I79I
impeaching a witness by self-contradiction s Iv'^lS, 1792
(d) res gestm S 1795-1797
history and meaning of the term s I795
agent's and conspirator's admissions ,. I797
IV. Rule applied to Court Officers : see Juboe ; Judge ; Counsel ; Interpreter.
852
INDEX OF TOPICS
[Figures 'set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Hearsay Rule (continued).
[Examine analyses of " By Cross-examination," Vol. II, p. 1697; " By-
Confrontation," Vol. II, p. 1749; and " Hearsay Rule and Appli-
cable," Vol. Ill, p. 2274.]
Height, as evidenced by other conditions or effects s 438, s 451, s 461
Heir, admissions used against s 1081
Heredity of illness, as evidence s 223
of insanity s 232
inference from note one 84-
Highway, evidencing owner's knowledge of danger of s 252
injury on cross-walk note one 252, note six a 252
injury on bridge, to show notice of condition note six s 252
on sidewalk, to show notice note six s 252
repairs, as evidence of negligence s 283
condition at another time or place, as evidence of defect s 437
injuries of other persons, as evidence of defect s 458
similar precautions, as evidence of safety s 461
see also Dedication.
History of the rules of evidence in general 8
of interest as a disquaJiflcation s 575
of rule for confessions . ' 817, 865
of rule for producing documentary originals s 1177
of attesting-witness rule 1287
of hearsay rule 1364
of dying declarations 1430
of statements against interest s 1476
of statement of pedigree 1480
of regular entries 1518
of statements about boundaries 1563
of use of record-copy of deed s 1650
books of, used in evidence 1597, 1690, 1699
of res gestae phrase s 1795
of the oath s 1815
of separation of witnesses s 1837
of opinion rule . 1917
of handwriting testimony 1991-1994
of rules of number s 2032
of compulsory process s 2190
of party opponent's privilege 2217
of marital privilege 2227, 2333
of privilege against self-crimination s 2250
of confidential communications 2285
of client's privile-re 2290
of patient's privilege s 2380
of penitent's privilege '. S 2394
of parol evidence rule
intent and mistake 2405
varying the terms 2426
interpretation • • • , s 2462, 2470
History, Books of, used in evidence
as representing reputation 1597
as scientific treatises s 1693, 1699
judicially noticed s 2580
Homicide, character of deceased in, to evidence self-defence . . . . s 63, s 246
moral character of deceased in s 1983
accused's threats, as evidence of s 102-105
deceased's threats, as evidence of aggression 110, s 247
refuting conclusion from finding knife near body in 34
survival of alleged deceased, as negativing corpus delicti 138
853
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to botli.]
Section
Homicide {continued).
threats of a third person, as evidencing innocence of the accused . . . . s 140
suicidal plans of deceased, as evidencing innocence of the accused .... 143
possession of booty or tools, as evidence of s 153, s 154, s 238
traces of blood, etc., as evidence of s 149
acts of violence, on an issue of self-defence s 198, s 248
conduct as evidence of accused's sanity s 228
other acts of violence, to show defendant's intent s 363
intrigue of wife-murderer with paramour as showing motive for .... S 118
circumstances showing a motive s 390
conduct as evidence of malice s 396, s 397
weapon, clothing, etc., as evidence of identity s 413
dying declarations in s 1432
marital privilege in s 2239
burden of proof of self-defence in s 2512
Horse, character of, as evidence of behavior s 68
fright of, as evidence of dangerous object . note six s 252, s 461
pedigree of s 1706
cribbing of, as unsoundness . . ' note nine 1700
see also Animal.
Hospital records, as memoranda s 751
as regular entries s 1530
Hostility of deceased shown by details of prior quarrels note three S96
former, of witness; see Impeachment (g).
see also Deceased by Homicide.
House; see Peemisbs; Pbopehty.
House of ni-fame, character of s 78
character of inmates of s 78
other acts, as evidencing character 204
as evidencing intent S 367
provable by reputation s 1620
Husband, testimony of, as disquaUfled or privileged; see Marital Relationship.
notice to, as evidence of wife's knowledge s 261
admissions of, against wife s 1078, s 1086, s 2232
statements of, to evidence pedigree; see Family History.
expressions of affection or dislike 3 1730
motive or desire of, to get rid of wife 191
communications by or to, as privileged; see Marital Relationship.
presumption of coercion by s 2514
see also Criminal Conversation; Homicide.
Hypnotism, showing influence of, on witness note one 934
Hypothetical Question
general theory 672, 1927
as "' usurping province of jury " 673
Observation and Hypothetical Presentation discriminated .... s 674-678
when allowed or required S 674-680
may be put only to expert s 679
answer to, fails if premises are not sustained s 680
form and scope S 681-683
abuse of . . . -. s 682
all undisputed facts need not be included in s 682
on cross-examination 684
to physician involving privileged facts, is not privileged note five 8382
mode of objection to inadequate offer of 18
Hysteric person as claimant ' 963
I
Ice, as a highway defect; see Highway; Negligence.
Identity, mistaken, as evidence 142
854
INDEX OF TOPICS
IFigures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
Section
Identity {continued).
as evidenced by traces, of accused or other party 148, s 149
by other crimes s 218, 414
by family history or hearsay s 270, 1494
by voice s 660
over telephone S155
by stature s 660
condition of light as affecting S 460
by appearance s 660, s 1154
by witness' former recognition 744, s 1130
by photograph s 660, 790, 1156
by finger-prints 149, ill
by footprints note three $sed
by placing hat on accused's head note three 2265
of voice, as shown by utterance 222
of person, place, chattel, etc., in general s 410-416
by clothing s 413,, s 660
of brand or mark on stock or timber . . S 150
of maker of attested document 1513
of a time or place, as shown by utterances 1791
opinion testimony to s 1977
of document, shown by ink, paper, etc s 2024
original required s 1244
presumption of, from identity of name s 2529
from traces, tools, etc 148, s 2529
of grantor or grantee s 2529
of signer of affidavit in chancery s 2529
of one convicted of crime s 2529
of party to marriage s 2529
of names in tracing title s 2529
Idiot; see Sanity; Intebpbeter; Witness; Oath.
Illegality in obtaining evidence, not to exclude it . . ..^ s 2183
nie'glble Dociunent, production of original 1229
expert testimony to 2025
verbal precision in note one s 2105
niegitimacy, character of third person as evidence s 68
adultery, as evidence of 134, 165
non-access, as evidence of 137
as evidenced by family hearsay; see Family Hi&tory.
by neighborhood-reputation s 1605
see also Legitimacy; Bastardy.
ni-fame, house of; see House op Ill-fame.
Illiterate, signature by mark, whether identifiable s 693
as attesting witness a 1512, 1292
Illness, test when evidence is offered of, as result of eating certain food ... 33
explaining away evidence that arsenical wall paper caused 35
as evidenced by appearance s 223, s 437, 441
prior and subsequent condition of s 225, s 437, 441
insured's knowledge of, as evidenced by declarations s 266
symptoms, as indicating cause of 441, s 457
witness' experience in, as qualifying him s 668, s 687
as impeaching a witness s 934, s 1005
as excusing absence of attesting witness 1315
of deponent 1406
of declarant of facts against interest s 1456
of maker of regular entries s 1521
of witness summoned 2205
as excusing lack of cross-examination s 1390
expressions of suflfering in 1718
855
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement: S 1678 refer to both.]
Section
Illness {continued).
privilege for communications to physician s 2380
see also Physician ; Poison; Health.
Imbecile; see Idiot.
Immaterial, distinguished from incompetent and irrelevant . . . note eighteen s 18
Immateriality of evidence, cured by other immaterial evidence s 15
see also Irrelevancy.
Immunity, of corporation from disclosure note two 2259
to ■witness, destroys privilege against self-crimination 2281
what disclosures entitle a witness to, under statute 2281
mode of obtaining, under statute 2281 a
before judicial officer 2281 a
before administrative officer 2281 a
testimony before grand jury note three 2S63
of witness, from arrest S 2195
Impeacbing one's own instrument, forbidden 529
Impeachment of a Witness
(a) general -principles
(b) persons impeachable
(c) moral character
(d) insanity
(e) experience
(f) bias, interest, and corruption
(g) bias
(h) corruption
(i) interest
(j) moral character
(k) skill, memory, knowledge
(1) contradiction by other witnesses
(m) falsus in uno, falsus in omnibus
(n) self-contradiction
(o) sundry modes
(p) absent witness
(a) general principles S 875-881
point where party becomes witness for impeachment s 1893
discriminations in proving defective qualifications s 876
(b) persons impeachable S 884-918
hearsay witnesses (dying declarant, attesting-witness, etc.) 884-888, s 1446, 1514
attesting witness 886, 917, s 1033, 1514
accused as witness 889-892
impeaching an impeaching witness 3 894, s 1111
one's own witness s 896-918 '
general principles s 896-899
by immoral character s 900
by bias, interest, or corruption S 901
by bribery s 901
by prior self-contradiction s 902-906
by contradiction with other witnesses s 907, 908
who is one's own witness S 909-918
distinguished from discrediting opponent on discovery . . note eight 1856
relevant answer necessary to create protection 910
unused deposition 910, s 912, s 913
witness called by judge 910, s 918
opposing party as witness s 916
co-party witness against co-party s 916
necessary witness 917, s 918
using opponent's deposition s 913
book of regular entries by clerk or party 1531, s 1557
expert witness and scientific books s 1700
856
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
_ ' Section
Impeachment of a Witness {continued).
(c) moral character in general s 920-941
general principles 920, 920
kind of character s 922-926
specific traits 924
witness and party distinguished s 925
prior conviction 926
time of character s 927-929
after suit begun 929
place of character 930
(d) insanity, etc g 931-936
insanity 932
intoxication s 933
use of cocaine note one 934
disease s 934
age s 934
morphine habit s 934
defect of speech s 934
religious belief s 935
race 936
(e) experience 938
(f) bias, interest, and corruption, modes of evidencing S 943-969
general principles 943
cross-examination s 944
demeanor as evidence s 946
(g) bias from oircumstanees and conduct s 948-950
from former hostility 936
relationship as evidencing bias S 949
relationship invoked by counsel, disregarded by jury .... note two s 949
pecuniary relations to show bias note three 949
details of a quarrel s 951, s 952
preliminary inquiry to witness S 953
opinion as to another's bias s 1963
see also Bias. I
(h) corruption s 956-S64
willingness or offer to swear falsely s 957, s 958
confession of false testimony s 959
attempt at subornation or bribery 960, 962
receipt of money s 961
sundry corrupt conduct s 963
preliminary inquiry to witness 964
see also Cokbuption.
(i) interest in civil cases S 966
in criminal cases s 967, s 968
bonds, rewards, detective-employment, insurance, etc s 969
see also Interest.
(j) moral character, evidenced by misconduct s 977-988
general principles 977, 978
relevancy and auxiliary policy distinguished 978
extrinsic testimony 979, s 987
particular acts of misconduct 979
record of conviction s 980, s 1270
arrest or indictment as affecting credibility s 980, 982
pardon as affecting credibility s 980
cross-examination s 981-983, s 987
relevant questions excluded for policy s 983
privilege against disgracing answers 984
rumors, on cross-examination s 981
by reputation s 1608-1628
857
INDEX OF TOPICS
(Figurea set thus ; 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Impeachment of a Witness [continued).
by personal opinion 1980
belief on oath s 1985
see also Character.
(k) skill, memory, knowledge, as tested on cross-examination . . 730, s 990-991
incapacity evidenced by particular errors s 996
grounds of expert opinion 992
testing capacity to observe 993
opportunity to observe 994
by testing capacity of memory . • . . S 995
expert to handwriting ■ s 2015
(1) contradiction by other witnesses s 1000-1015
collateral matters s 1000-1007
unfair surprise in 1002, s 1007
test of coUateralness s 1003
collateral questions on cross-examination S 1006
supporting contradicted witness on direct examination ... s 1007
bias, corruption, skill, knowledge, memory s 1005
(m) falsus in uno s 1008-1015
of an explanatory statement • ■ 1046
(n) self-contradiction s 1017-1046
general principles 1017
rules for avoiding Unfair Surprise and Confusion of Issues 1019
collateral matters s 1020-1023
test of coUateralness 1020
facts not collateral s 1021, s 1022
bias, corruption, skill, knowledge s 1022
preliminary warning necessary s 1025-1039
reason of tlie rule 1025
history of the rule 1026
objections to the rule 1027
specifications necessary in warning question s 1029
absent or deceaseii witness 1030, s 1032
depositions s 1031
testimony at a former trial S 1032
dying declarations s 1033
attesting witness s 1033
testimony admitted by stipulation S 1034
contained in other sworn testimony 1035
recall to put the question s 1036
recall made impossible by act of party first producing witness
note one s 1036
recall of accused taking stand voluntarily . . note one, s 1036, s 2276
contradiction admissible s 1037
contradiction must be independent of present answer ... S 1038
preUminary question unnecessary in certain eases .... s 1039
what is a self-contradiction 3 1040-1043
admissions as contradictory utterances s 1040
joint statement s 1040
conduct s 1040
opinion s 1041
silence, omission to claim or speak s 1042, s 1043
explaining the contradiction s 1044
putting in the whole s 1045, s 2098
joining issue 1046
showing the writing to the witness s 1259-1263
distinguished from admissions s 1051
party's admissions; see Admissions.
testimony before grand jury, not privileged s 2363
858
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Impeachment of a Witness (continued) .
(o) sundry modes
of witaess who proves document s 1093
of attesting witness 1514
by annoying questions s 781
by repetition of questions s 782
by conviction of crime; see Conviction of Crime.
for restoring credit; see Witness, IV.
(p) absent ivitness, impeached Uke others 888, s 1034
see also CoNTKADicTioN ; Choss-examination, IV; Demeanor; Dying
Declaration; Expert Witness, II; Questions to a Witness.
[Examine analysis of " Testimonial Impeachment," Vol. I, pp. xxvT-xxviii.]
Implied admissions s 1060
self-contradictions s 1042
Importation, other transactions as evidence of fraud in s 341
Impotency, inspection in divorce s 2220
Impression, as distinguished from knowledge 658
from type, as evidence of another 440
as sufficient for a handwriting-witness 698
as suificient in point of memory 726
as opinion testimony S 1969
excluded if founded on guess or rumor ... 1970
Imprisonment, as excusing absence of an attesting witness 1315
of a deponent . . 1407
see also Conviction of Crime.
Inadmissible evidence, as justifying other inadmissible evidence s 15
Incest, other offences, as evidence of intent or motive 360, s 398
sexual desire as evidencing . 400
who is accomplice in s 2060
eye-witness of marriage s 2085, s 2086
Incompetent evidence; see Admissibility; Irrelevancy.
employee; see Employee.
physician; see Physician.
persons in general; see Skill; Negligence.
Inconsistency, as impeaching a witness; see Self-contradiction.
Incorporation, reputation to prove s 1625
presumed S 2535
Indecency, of exhibition to jury s 1159
as ground for exclusion 2180
in presence of spouse is confidential note two s 2337
Indecent Assault, plaintiff's character, as mitigating damages s 75, 212
see also Rape.
Indecent Exposure, other offences, as evidence of intent 360
Indemnity against self-crimination s 2281
Indians, as witnesses; see Race.
Indictment, as disqualifying a co-indictee . . ' s 580
as impeaching a witness s 949, s 980, s 982, s 987
list of witnesses indorsed on s 1850
quashing, for improper compulsion to give evidence note six a 2270, note thirteen 2281
privilege for grounds of s 2364
for assent of grand jurors to s 2364
Indorsement, of witnesses on the indictment s 1850
• presumption of payment from, on note note one 2134
on bond, as statement against interest s 1460, s 1466
" without recourse " as waiver of genuineness note three 2445
in blank, when invalid • • s 2445
of bill of exchange; see Bill op Exchange.
Indorser, parol agreement collateral to instrument 2443
see also Bill op Exchange.
859
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.}
Section
Inducement to a confession; see Confession.
Inductive form of inference 30
Industry, facts of, judicially noticed s 2580
Infamy, disqualifying a witness 519
under exception to the Hearsay rule 1761
excusing absence of attesting witness s 1316
privileged from disclosure 984, 2216, 2255
see also Conviction op Crime.
Infant, disqualification as a witness 505
under exception to the Hearsay rule 1761
admissions of s 1053
dying declarations of s 1445
opinion to capacity of note two 1968
presumption of incapacity for crime s 2514
waiver by counsel for 1063
see also Age; Child.
Inference, modes of 30, 476
from failure to produce evidence s 285-291, s 2273
of witness must be based on adequate data s 659
of non-occurrence by reason of failure to see or hear s 664
Infidel; see Religious Belief.
Information, list of witnesses indorsed on s 1850
received by a person; see Knowledge.
Informer, privilege for communications by s 2374
Infringement; see Copyright; Patent.
Inheritance, proof of; see Family History.
character of third persons, to prove illegitimacy in S 68
Initials, document signed with s 2168
Injury, repairs after, as evidence of negligence s 283
cause of, as evidenced by its effects s 437-461
refuting evidence of, to house by sewer gas 33
caused by vibration' of bridge 34, 35
similar injury to other persons from same cause s 458
see also Corporal Injury; Illness; Negligence; Highway; Ma-
chine; Premises.
Ink, expert witness to nature of ■ . . . s 570
identification of document by note two 415, s 2024
Innocence, consciousness of, as evidence 174, s 293
failure to protest one's s 273, s 284, 1144
presumption of s 2511
not evidence in favor of accused note three s 2511
applied to bigamy a 2506
see also Dependant.
Inquiries, as evidence of design to commit crime s 238
Inquisition of domain, by the homage s 1670
of escheat, by the crown s 1670
of title, by the sheriff s 1670
of pedigree, by the heralds S 1670
of lunacy, by commission note one a 233, s 1671
of death, by the coroner s 1671
of population, by the census s 1671
in Europe, history of s 2250
Insane Belief, as shown by facts told to the party S6S
disproof of communications exciting S63
Insanity, mode of evidencing s 227-233, 993
prior or subsequent condition to prove 190, s 233
disinheritance as evidence of s 229
as evidenced by environment s 231
collateral or ancestral s 232
860
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1618 (italics) refer to supplement; S 1678 refer to both.)
Section
Insanity {iMntinued').
liereditary s 232
discrimination between various principles to prove 234
of transferor to show notice by transferee 253
qualifications of witness to prove s 568, s 689
as disqualifying a witness s 492, 932
under exceptions to the Hearsay rule 1751
evidenced by inspection in court s H60
excusing absence of attesting witness s 1316
inquisition or adjudication upon s 1671
utterances of person to prove 1734
opinion rule to testimony to 1933
observation of, by prescribing physician s 2384
see also Sanity; Lunacy; Lunatic; Mental Condition; Insane Belief.
Insolvency, as evidence of non-payment s 89, 224
purchaser's knowledge of, evidenced by repute 253
Arkansas rule requiring corroboration of wife's testimony of consideration in
transfer in 205^
evidenced by prior condition of s 382
as a motive for crime or fraud s 392
debtor's admissions s 1081, s 1082, s 1086
o'pinion testimony to 1959
■prima facie evidence of banker's knowledge of s 1354
as evidenced by reputation s 1621
see also Fraudulent Transfbhs.
Inspection, of memorandum used to aid recollection 753, s 762
of corporal injury, by jury or witness s 1862, s 2194, s 2220, s 2265
of real evidence, mode and place of s 1152
of corporation books before trial s 1858
right of citizen to, of public record note two 1858
of document of opponent, as making it evidence 2125
at trial, not privileged s 2193, s 2219, s 2264
of chattels or premises, not privileged s 2194, 2221, s 2264
trial by : . . s 2555
of document, premises, chattels, as permissible; see Real Evidence.
of documents, premises, chattels of opponent before trial; see Discovert.
see also Premises.
Instruction to the jury, where a fact is in part inadmissible 1S|
to disregard evidence; see Strike Out.
on witness' bias note one 940
on considering whole of an utterance note four S094
directing a verdict s 2495
Instrument; see Document.
Insurance, lack of money to negative large stock of goods in loss by fire note one 89
fraudulent, of life during illness note one 225, note four 266
insured's declarations, to show knowledge of illness s 266
as evidence of motive for negligence s 282, s 392
of bias or interest s 949, s 969
taking of policy, as evidence of ownership note four 282
against accident, as evidence of negUgenoe s 282, s 393, s 949, s 969
other fraudulent acts as evidence of intent s 340
proofs of loss in, as an admission s 1073
as res gestce S 1770
as coroner's official statement s 1671
admissions of insured against beneficiary s 1081
inspection of pohey before trial s 1858
materiality of risk or representations 1946, s 1947
privilege for communications to physician s 2389, s 2390
waiver of privilege in policy note six a 2388
861
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to both.]
Section
Insurance {continued).
application signed by mistake s 2415
collateral parol agreement to provide note one s 2442
burden of proof of conditions in policy of s 2537
policy in a single document s 2452
warranty of S 2434
proof of arson beyond reasonable doubt s 2498
presumption of accident, from death . . . . ' s 2510
see also Arson; Insurer.
Insurer, waiver by, in sending blank form for proof of claim to insured . . 1056
admissions of, as real plaintiff note six 1810
Intemperance, as evidence of misconduct 96, s 203
as impeaching a witness s 934
proved by reputation ' s 1621
see also Intoxication; Liquor-selling; Negligence.
Intent, criminal, general theory of ^ 242, 302
definition of 300
to evidence anonymous crimes ' 303
distinguished from design, etc 103, 300
knowledge or design 300
motive, design, character, etc 386
other crimes, as evidence of s 309-367
abortion s 359
adultery. 360
arson s 354
bigamy 360
burglary s 351
embezzlement 329
enticement 360
extortion . i s 351
false pretences . . . . 320
forgery and counterfeiting 309
fraudulent transfers 333
homicide and assault s 363
incest 360
indecent exposure . ' 360
larceny and kidnapping 346
possession of stolen goods 324
rape s 357, 358
robbery S 351
seduction 360
sodomy 360
sundry frauds s 340
miscellfineous offences s 367
civil cases 370
declarations, as hearsay evidence of; see Mental Condition, Declarations of.
testifying to one's own intent s 581, 1965
testifying to another person's intent s 581, s 661, 1964
expressions of, or motive by defendant s 1732
opinion evidence of, in dedication / s 1967
controlled by substantive law s 1967
declarations, of ; Hearsay rule and Verbal Acts distinguished 1968
in slander and libel s 1971
declarations of, used to interpret a document s 2471
parol evidence of, to disinherit s 2475
presumption of, in criminal cases s 2511
jury to determine, in libel 2557
of party to a document; see Parol Evidence Rule.
proof of, by parol evidence; see Parol Evidence Rule.
862
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Intent, information or notice, as evidence of; see Knowledge.
see also Motive; Intention.
[Examine analysis of '' Other Offences or Similar Acts, as Evidence
of Knowledge, Design, or Intent," Vol. I, p. 386.]
Intention, testamentary or contractual s 112
opinion of another's intention 1964
one's own intention 1965
distinguished from " meaning " 2459
to go to certain place, to evidence going note one 1725
to commit suicide note one s 1725
see also Design; Intent; Motive.
Intercourse; see Bastardy; Rape; Seduction; Incest; Pregnancy.
Interest
(a) as disqualifying a witness
(b) as impeaching a witness
(c) as excusing absence of a witness
(d) OS money profit
(a) as disqualifying a witness
history S 575
general principle 32, s 676
civil parties 577
survivors s 578
accused s 579
co-indictees s 580
testimony to one's own intent s 581
attesting witness of a wiU s 582
voir dire 583
mode of proving interest s 584-587
burden of proving s 584
time of making objection to s 586
judge determines 587
time of interest 583
husband and wife; see Marital Relationship.
husband or wife of co-defendant s 609
dying declarant S 1445
(b) as impeaching a witness
one's own witness s 901
parties and others in civil eases s 966
accomplices and co-indictees s 967
accused s 968
bonds . ' 3 969
detective-employment s 969
insurance s 969
rewards •. s 969
real party injured s 969
restoring credit by consistent statements s 1128
knowledge of equitable, or other, by purchaser s 254
(c) as excusing absence of a witness
of an attesting witness s 1316
of a deponent s 1409
of a deceased declarant s 1456
(d) as money profit
reduced by subsequent oral agreement note one 2441
Interest, statements against '
party's admissions; see Admissions.
hearsay exception; see Against Interest.
Interlocutory proeeedirigs, rules in, distinguished s 4
International affairs, privileged against disclosure s 2375
not judicially noticed s 2574
863
INDEX OF TOPICS
[Figures set thiis : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to both.]
Section
Interpretation, judge's function s 2556
opinion rule
expert interpretation of technical words s 1955
location of deed-descriptions s 1956
by parol evidence; see Parol Evidence Rule, D.
Interpreter, qualifications of s 571
testimony to conversation with . . . ' 668
not necessarily called to contradict interpreted testimony 1810
proof of former testimony given through s 751
necessity for s 811
adequacy of cross-examination without s 1393
admissions of, as agent ' 668, s 1077
sworn translation of deposition s 1710
translation as hearsay s 1810
must be sworn s 1810, 1824
form of oath for S 1818
juror as note one 1910
communication between attorney and client, through, is privileged note two 2317
Interrogation, mode of; see Question to a Witness; Examination.
Interrogatory, mode of framing; see Question to a Witness.
to opponent before trial; see Discovery.
notice of deposition; see Deposition.
order of topics; see Order of Examination.
non-responsive answer to s 785, s 1392
sweeping interrogatory S 1392
discrediting opponent by his own answer to note eight a 1856
answers to statutory s 2124
statutes allowing judgment to be taken for refusal to answer . . note six 2218
Intimation of crime about to occur, as showing guilt s 238
Intimidation of witness, as evidence of guilt s 278
on cross-examination, forbidden 3 781
Intoxication, as evidence of an act done s 85, 96
as affecting ability to do an act s 85
modes of evidencing 3 235
evidenced by conduct s 235
by predisposing circumstances s 235
by prior or subsequent condition s 235
by appearance s 235, s 660, s 1154
uses of condition of, as evidence, distinguished note three s 235
other instances, as evidencing a common drunkard s 203
as disqualifying a witness 3 499
qualifications of witness testifying to s 571, 3 660
spouse testifying to, as confidential fact .... note one 2336, note two 2337
confession made during S 841
of a witness, in impeachment s 933, 993, s 1005
presumption of incapacity for crime during 3 2514
see also Intemperance; Liquor-selling; Negligence.
Invalidating one's own instrument, forbidden 529
Invention, privilege against disclosure of s 2374
see also Patent; Trade Secret.
Irrelevancy of evidence, cured by offering other irrelevant evidence .... s 15
distinguished from multifariousness S 42
. not the subject of privilege 3 2210
Irrelevant matters conditionally received s 1871
l3sue, facts not in, distinguished from facts not admissible 2
parent's bastardizing of s 2063, 2064
Issues, offering former testimony on the same 1386
of pedigree, to admit family hearsay s 1503
proving character in; see Character; Confusion op Issues.
864
INDEX OF TOPICS
(Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
Section
J
Jail; see Conviction op Crime; Imprisonment; Confession.
Joint- Defendant, etc. ; see Co-defendant, etc.
Journal; see Books op Account; Legislative Journal; Newspaper.
Judge to determine qualifications of witness 487, s 497, 587
has no duty to examine on voir dire note three ^97
not a mere umpire s 21, s 983
to determine admissibility of a confession s 861
questions to a witness by a judge s 784
witness called by, may be impeached 910, s 918
decree in another cause, as reputation 1594
testimony by a 1805, s 1909
privilege for 2372
notes of testimony taken by 1666
evidence offered after charge given by s 1879
power to determine privilege-claim s 2271, 2322, 2376
admissibUity of evidence s 2550
negUgence 2552
reasonableness ■ 2553
malicious prosecution 2554
construction of documents s 2556
criminal intent 2557
foreign law s 2558
nul tiel record S 2555
may seek evidence s 2484, 2569
may not use private knowledge 2569
may take judicial notice; see Judicial Notice.
see also Judicial Discretion; Magistrate.
Judgment of conviction of crime, as affecting a witness; see Conviction ojp Crime.
offer to confess, as an admission S 1061
theory of conclusiveness S 1347
of conviction of crime, used against accessory s 1389
sheriff's recital of contents s 1664
fuU faith and credit to be given to s 1681
proving the whole S 2110
statutes allowing, for refusal to answer interrogatories .... note six SSI 8
see also Judicial Record.
Judicial Admission, as affecting inference from failure to produce evidence s 291
distinguished from other admissions 1057, 2588, 2589
of contents of a document s 1257
of execution of a document s 2132, s 2595
eflfect as conclusive upon the party making s 2590
exclusive of evidence by the party benefiting s 2591
validity as a waiver of unconstitutionality or other illegaUty .... s 2592
effect on subsequent trials s 2593
form and tenor of the admission; who is authorized 2594
by attorney .- ■ • ^^^^
testimony of an absent witness, admitted to avoid a continuance ... s 2595
of genuineness of document s 2596
Judicial Decision
report of, proved by official printed copy s 1684
by private printed copy 1703
judicially noticed S 2579
Judicial Discretion, scope of s 16
abuse of s 16
distinguished from unappealable rulings s 16
ruling upon objections s 18
admitting experiments, etc 444
865
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.}
Section
Judicial Discretion, determining a witness' qualifications s 496, s 507, s 561, s660
allowing leading questions s 770, 776
admitting a confession S 862
controlling the scope of cross-examination s 944, S 983
search for a lost document S 1194
admitting testimony after the proper time s 1867
limiting the number of witnesses 1908
relieving from stipulation s 2593
Judicial Estoppel, distinguished from pleading 1066
Judicial Notice, general theory 2565
anomalous meanings ' 2566
mode of proceeding 2567-2569
taken by jury 1801, s 2570
is not conclusive 2567
must be requested 2568
judge's private knowledge 2569
judge may inform himself 2569
specific facts noticed
domestic and foreign law S 2572, s 2573
charter of city • s 2572
State law, by Federal courts s 2573
affected by sub-division or amalgamation s 2573
international affairs-; seal of State s 2574
ofllcial and judicial seals s 2161-2169
almanac 2566
foreign judgments S 2574
pubUc divisions of land; boundaries, capitals, counties, etc. ... s 2575
official authority and identity 2576
elections s 2577
census, etc s 2577
proceedings of legislature, Executive proclamation s 2577
officers and rules of court s 2578
jurisdiction and terms of court s 2578
jiidicial proceedings i . . . . . s 2579
commerce, industry, history, science, etc s 2580
times, distances s 2^81
meaning of words ' s 2582
intoxicating liquors S 2582
dictionaries S 2582
[Examine analysis of " Judicial Notice," Vol. IV, p. 3598.]
Judicial Record, what constitutes s 2450
original admissible instead of a copy s 1186
custody presumes genuineness s 2158
original need not be produced S 1215, S 1249
nul tiel record, perjury 1216, s 2555
dockets 1217
copy of, preferred to recollection s 1267, s 1268, s 1269
certified copy s 1273
copy of a copy 1274
sealed attestation of copy s 2162
conclusive proof of the facts adjudged 1346, s 1347, s 2450
of contents of lost document re-estabhshed . s 1275, s 1347, s 1660, s 1681
Of prehminary probate not evidence on appeal 1658
full faith and credit required of S 1681
answer in chancery; see Answer.
provable by certified copy s 1681
by inspection s 2555
whole must be proved ,...'. s 2110, s 2116
see also Cektifibd Copy.
866
INDEX OF TOPICS
[Figures set thuB : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1678 refer to both.J
Section
Jurat, as evidence of oath taken s 1676
see also Certificate of Oath; Public Document; Notary.
Jurisdiction, conviction of crime in another; see Conviction op Crime.
absence from, as presuming death S 2531
document out of s 1213
attesting witness out of s 1312
subpoena to witness out of ' . . s 2207
Juror, having knowledge must testify s 1800
incompetency of 1801
not to receive evidence out of court _ . . s 1802
disclosing at subsequent trial, knowledge obtained at view on former
note one 1910, SS46
objections to, as witness s 1910
as interpreter note one 1910
personal knowledge of s 2354
Jurors, communications, by and to 2345
motives, beliefs, misunderstandings, etc s 2349
impeaching a verdict s 2349
testimony supporting a verdict s 2349
voir dire of, as to interest in employer' s-liability insurance S8S, 969
Jury, fraud in packing, evidence of intent s 367
determination of witness' qualifications 3 497, 587, 1187
memorandum of recollection shown to s 754, s 763
determination of admissibiUty of confession s 861
determination of admissibility of dying declaration s 1451
withdrawal during arguments of admissibility s 861, s 1808
corporal injury exhibited to s 1157, s 1158, s 2220
clothing exhibited to s 1157
animal produced before S 1154, s 1161
improper sampling of liquor by s 1159
reading scientific books to s 1700
verdict admitted as reputation, in another cause 1593
as " verbal act," to prove boundary 1593, s 1778
not to be impeached by juror ' 2348
deliberations of 2348
failure to observe formalities of conduct 2348
correction of mistake in verdict 2348
notes of former testimony taken by s 1669
judicial notice by jury 1801
view by, evidence not to be received at s 1802
defendant's presence at 1803
general rules for s 1162-1168
in eminent domain s 1168
information acquired at view by, is not evidence 1802
evidence not ordinarily to be offered to, after retirement s 1880
to be offered to, after verdict 1881
documents taken to jury-room s 1802, 1913
experiment with gun in jury room note one 460, note one 1160
juror may be witness , . . . . s 1910
must be sworn s 1800
charge given - ' . . . s 1879
retirement of .... ^ 1880
showing specimens of writing to 2001, s 2016
privilege for communications between s 2346
examining the jury before discharge 2350
misconduct of party or court-officer toward s 2354
verdict of, given to unintended party s 2355
manner of, and right in poUing note one 2355
sufficient evidence for s 2494
867
INDEX OF TOPICS
IFignres set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Jury {continued).
right to determine law s 2558, 2559
to construe documents s 2556
to determine intent 2557
negligence 2552
reasonableness 2553
admissibility of evidence s 861, s 1451, s 2550
right to use general knowledge s 2570
see also Juror; Jurors; Bribery; Grand Jury; Judge; Verdict.
Justice of the Peace
docket of, original required s 1215, 1217
certified copy allowed s 1681
seal not presumed genuine s 2164
examination of accused or witness; see Examination.
record conclusive s 2450
ofBce judicially noticed s 2578
see also Public Officer; Judge.
K
Kidnapping, other offences as evidence of intent 349
King, testimony of, admitted without calling 1384, 1674
without being sworn 1825
privilege of 2368-2372
Knife; see Weapon.
Knowledge, technical, as showing ability to do an act s 87
of poisons s 87
of skill in imitating handwriting s 87
and experience in drafting wills S 87
evidenced by newspaper advertisement s 255
relative weight of negative 664
Knowledge, or Belief
(a) In general
(b) Circumstances or Reputation, as evidence of
(c) Conduct, as evidence of
(d) Declarations, as evidence of x
(e) Other crimes, as evidence of
(f) Testimony to a third person's
' (g) Qualifications of a witness as to
(h) Impeachment of a witness as to
(a) In general
distinction between knowledge and behef 658
distinguished from Design and Intent 300
distinguished from experience, observation 658, 650, 651
(b) Circumstances or Reputation, as evidence of
of accused, as to deceased's aggression 245
as to deceased's character s 246-258
of employer, as to employee's incompetence s 249
of owner, as to animal's vice 8 251
precautions taken with animals to show, of vice 3 282
personal, to evidence disposition of animal note four 1984
of owner, as to defect of place or machine s 252
of purchaser, as to seller's insolvency 253
of possessor, as to stolen goods s 254, 259
of creditor or debtor, as to partnership 3 255
of maker of representations, as to falsity s 256
of Uquor-seUer, as to buyer's condition .^3 257
of prosecutor or arrester, as to probable cause 3 258
of utterer, as to forged paper 259
868
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
Section
Knowledge, or Belief [continued).
of possessor, as to contents s 260
about a document, production unnecessary s 1243
of sundry persons S 261
specifying grounds of, on direct examination s 656
information or reputation, as res gestm 1789
(c) Conduct, as evidence of
of sundry facts known or believed s 266, 267
of consciousness of guilt s 273-291
of innocence s 293
prima facie evidence defined by statute s 1354
(d) Declarations, as evidence of; see Mental Condition, Declaeations of.
(e) Other crimes, as evidence of
general theory 301
sundry crimes (forgery, embezzlement, etc.) s 309-367
see also Intent.
definition of 300
observation, opportunity to observe and knowledge distinguished . . 650
distinction between experience and 651
may rest on a hypothetical basis 652
often both general and specific 653
burden of proof of, qualification s 654
questioning witness as to ground of s 655
degree, quality and source of s 656-664
judicial phrasing of principles of 656
must not be founded on hearsay s 657
need not be positive or absolute 658
inference of identity from appearance s 660
testimony to another's state of mind s 661
improbabiUties in scientific testimony s 662
speculative testimony to values or personal injuries 663
testimony of non-occurrence from absence of sensual knowledge . . . s 664
(f) Testimony to a third person's s 661
(g) Qualifications of a witness as to; see Witness, I, Qualifications.
(h) Impeachment of a witness as to; see Impeachment.
[Examine analyses of " Evidence to prove Knowledge, Belief, or
Consciousness," Vol. I, p. 303; " Other Offences or Similar
Acts, as Evidence of Knowledge, Design, or Intent," Vol. I,
p. 386; and " Testimonial Knowledge," Vol. I, p.' 744.]
Land, words during possession or entry, as res gestae s 1777, s 1778
public divisions of, judicially noticed s 2575
explaining away evidence that flowage damaged 35
possession of, as evidenced in various ways; see Possession.
contracts or customs concerning; see Contbacts; Custom.
declarations or reputation about boundaries of or title to; see Boundaries.
parties' admissions of title to; see Admissions.
testimony to value of; see Value.
see also Peopekty; Premises.
Land-grant of government; see Deed; Land-office.
Landlord, tenadt disputing title of 1473
Landmark; see Boundaries.
Land-office, producing original of documents in s 1239
conclusiveness of rulings of • s 1347
records of, in general s 1656
register of, to prove a deed's execution s 1651
869
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; -3 1678 refer to both.]
Section
Land-office {continued).
certificates of s 1674, s 1678
reports of title s 1672
surveys of s 1665
copy of whole required s 2109
Language; see Interpbetbr; Interpretation.
Lapse of Time, as presuming loss of document , s 1196
as presuming payment 159, s 2517
Larceny, possession of stolen goods as evidence of 152, s 2513
possession of money, as evidence of 32, s 154
other crimes as evidence of intent 346
motive for S 391, s 392
evidence of identity of goods s 413
owner's complaint after 1142
accused's explanations after 1143
notice to produce original document in 1205
proof of, without producing document stolen s 1249
words accompanying the taking, as res gestae s 1777, s 1781
testimony of owner to non-consent s 2089
presumption from possession of goods s 2513
judgment of conviction of principal in, used against accessory . . . 1S88
Latent Ambiguity in a document s 2472
Law, distinguished from fact 1,2549
rules of, distinguished from rules of pleading and evidence 2
laymen testifying as experts on 564
foreign statute proved without copy s 1271
by expert 564, s 690, s 1953
prima facie evidence of, under statute . s 1354
proved by official printed copy ..'..". s 1684
by private printed copy 1703
by treatises S 1697
presumption of s 2491
judicially noticed s 2572, s 2573
judge or jury to determine 2549, s 2558, 2559
Laws, conflict of; see Conflict of Laws.
Lawsuit; disqualifying as witness former party to a 32
see also Litigation.
Leading Questions, what are 769
admissibiUty of answers to 32
allowable only in discretion s 770, 776
kinds of questions that are leading 771
assuming a disputed fact as true 771
admitting of "■ yes " or '' no " answer s 772
answer of witness to . s 772
exceptions to the rule 776
on cross-examination s 773, 915
for bias shown, may be forbidden in cross-examination g 773
own witness hostile, biassed, or unwilling s 774
facts preliminary to matters in issue 775
an extraordinary occasion 776
when witness' recoUeetion is exhausted 777
when witness has immature or weak mind s 778
misleading on cross-examination s 780
judge may ask s 784
impeaching one's own witness 915
in dying declarations s 1445
see also Question to a Witness.
[Examine analysis of " Testimonial Narration or Communication,"
Vol. I, p. 858.]
870
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Learned Treatises,. used in evidence s 1690-1700
author's standing as authority ' 1694
counsel reading from 1694, note one 1697, s 1700
Lease, course of business as evidencing terms of 94, 372, s 377
ancient, to show seisin s 157
production required, in proving tenancy s 1246
collateral parol agreement qualifying note bne s 2442
see also Deed; Possession.
Ledger, as a book of regular entries s 1548, s 1558
Left-handed, evidence of accused being note three 413
Legatee, admissions of s 1081
Legislative Journal, whether original's production is required s 1219
whether receivable to overthrow enrolment of statute s 1350
admissible to prove facts recorded s 1662
provable by printed copy' s 1684
judicially noticed s 2577
Legislature, power of, to alter rules of evidence s 7, 1353
power to compel answer from witness s 2195, s 2252
privilege of member of s 2376
see also Statute ; Legislative Journal; Constitutional Rules.
Legitimacy, birth during marriage, as evidence of 164
resemblance of child, as evidence of s 166
as evidenced by parents' conduct s 269
by parents' statements; see Family History.
as evidenced by reputation s 1605
valid marriage presumed, to assist , . . . . 25
presumption of s 2527
see also Bastardy; Illegitimacy; Marriage.
Length of a witness' examination s 783
of a hypothetical question 683
of life S23
of a trial 1864
Lessee, declarations of, made during possession s 1778
see also Lease; Verbal Acts.
Letter, dehverji^ of, as evidenced by maiUng s 95
aaionymous typewritten, individuality of style shown note three 87
habit of using government envelopes, to evidence stamp used on . note four 95
third person's, as evidence of sanity s 228
similar act of sending lewd note nine 367
receipt of, as qualifying a witness to handwriting s 702
— failure to reply to, as an admission s 1073
- found on accused is admissible note two 1073
of husband or wife, showing feeUngs s 1730
putting in other letters in answer s 2104, s 2120
received by mail in reply, as genuine s 2153
-i admissions of sending or receiving note one s 2153
receipt of, as evidence of authorship 2519
see also Document.
Letter-press copies, as originals s 1234
Lex fori, rule of evidence in, apphcable s 5
statutes making, uniform 6
Liability, facts of civil liability as privileged s 2223
of criminal liability s 2250
Libel; see Defamation.
License to sell Uquor, as evidence of sale s 238
refusal to produce, as evidence of non-possession s 291
to practice medicine, as quahfjdng a witness S 669
to marry; see Marriage.
Lie; see Falsehood ; Perjury.
871
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.J
Section
Lien, prmlege for documents held under 2211
Life, presumption of continuance of s 2531
of survivorsMp 2532
expectation of, evidenced from long life of ancestors note two 223
Life Insurance; see Insurance.
Life Table, used in evidence s 1698
judicially noticed 2566
Light, distance or quality of, as shown by instances s 460
Limitations; see Statute of Limitations.
Line of survey; see Boundaries; Survey.
Liquor, effect of, as indicating nature s 457
sample of, as indicating nature 439
improperly used as sample by jurors s 1159
selling to a minor; see Age.
going in sober and coming out drunk as evidence of obtaining . . note five 153
seized in illegal search, admissible Tioie two 2264-
\ druggist required by statute to file report of sales of .... note twelve a 2264-
burden to show hcense in illegal sale of note four 2512
meaning of terms, judicially noticed s 2582
intemperate use of, not provable by reputation s 1621
see also Intoxication; Liquor-selling.
Liquor-selling, possession of liquor, as evidence of s 153
other sales as evidence of common selling s 203
as evidenced by license or tax-payment s 238
to minor or intemperate, evidence of knowledge of s 257
other sales, as evidence of intent s 367
other keeping, as evidence of continuous keeping s 382
burden of proof of hcense for s 2512
privilege not to produce hcense for s 2375
inference from refusal to produce s 291
presumption from possession of hquor s 2513
see also Intoxication; Liquor.
Liquor-tax receipts, disclosure of note eleven 6
Iiist of witnesses, before trial s 1850
before grand jury s 1852
Literature, counsel's argument referring to, for illustration .... note three SIQI7
Litigation, fact of, as biassing a witness s 949
pleadings in other, as admissions S 1065-1067
kind of, in pedigree hearsay s 1503
Loan, words accompanying, as res gestm s 1777
fact of, shown by possession of money s 89, 224
lack of money, as evidence of motive for s 392
see also Contract; Creditor; Payment.
Locomotive; see Machine; Sparks; Speed.
Log, marks on, as evidence of ownership s 150, s 2152
register of s 1647
Log-book of ship, as a book of regular entries s 1523
as an official register s 1641
Logical theory of relevancy 30
Longevity, evidenced by long life of ancestors note two 223
Loss of a document; see Original Document.
of a ship, as evidenced by lack of news s 158, s 2531
Lost Document, substance of s 2105-2107
contents of s 1957
provable by recollection; see Recollection.
copy of lost ancient deed s 2143
copy of, judicially estabhshed s 1347
proved by certified copy; see Certified Copy.
of lost deed recited in another s 1573
872
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Lost Document (continued) .
substance of contents of lost deed s 1967, s 2105
presumption of s 2522
from lapse of time s 1196
see also Original Document.
Lost Grant, presumption of s 2522
not to excuse from proof of loss of specific deed s 1196
Lottery, other acts as evidence of intent 3 367
Lunacy, inquisition of s 1671
appearance as evidence of s 1154, s 1160
see also Lunatic; Sanity.
Lunatic, knowledge of purchaser from, as evidenced by repute 253
disqualification of opponent as witness s 578
admissions of s 1053
capacity to take the oath 1822
to be a witness s 492
see also Sanity.
M
Machine, evidencing owner's knowledge of danger of s 252
reputation of defect in a s 252
former injuries caused by defective s 252
repairs of, as evidence of negligence s 283
capacity of, as shown by its effects 3 441-461
condition at another time or place, as evidence 3 437
other instances of operation, as evidence of condition of S 451
similar injuries, as evidence of defect in s 458
similar precautions, as evidence of safety of s 461
negligence presumed from accident at 3 2509
see also Employee; Negligence.
Machinery, injury from vibration of 441, 442
Magistrate, confession made to •■ 3 842-852
report of, on statement of accused 3 1326-1329, s 1349
report not taken, or lost 1327, s 1349
usable as memorandum s 1328
as confession 3 1328
report of witness' testimony s 1329
report of, showing incompleteness 3 1349
examination of accused or witness; see Examination.
see also Public Officer.
Magnifying-lens, used by witness or jury s 795, s 1152
Mail, course of, as evidence of an addressed letter's dehvery 3 95
of a reply-letter's genuineness .... s 2153, 2519
fraud in, other acts as evidencing intent s 341
proof of loss of letter sent by s 1201, 3 1203
see also Letter; Postmark.
Maker, parol agreement collateral to instrument 2443
proving signatitte of, or attesting witness 3 1320, 1513
see also Bill of Exchange; Note.
Malice, as evidenced by an accused's threats s 105
by other assaults, etc s 363
by hostile expressions or conduct . i 3 396
by other utterances in defamation 403
unproved plea of justification as evidencing 404
as impeaching a witness ; see Bias.
presumption of, in criminal cases s 2511
see also Malicious Mischief; Malicious Prosecution; Intent;
Motive. ^
873
INDEX OF TOPICS „
[Figures set th<is: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both,]
• Section
Malicious Mischief, evidence of intent in s 367
Malicious Prosecution
character of plaintiff, as mitigating damages s 75, note one 76, s 209
evidence of prosecutor's belipf s 258
conduct as showing malice . s 396
former testimony in s 1416
testimony before grand jury, not privileged s 2363
burden of proof in 2539
judge or jury to determine probable cause 2554
Malpractice, character of defendant in 67
other persons' conduct, as standard of care, etc s 461
party's skill proved by reputation S 1621
by particular instances of its exercise s 208
by opinion . s 1984
privilege for 'communications to physician 3 2385, s 2389
see also Negligence; Abortion; Homicide.
Map, used to illustrate testimony 790
verification of 793
as an of&oial survey S 1665
as a declaration of boundary 1570
as reputation of boundary 1592
see also Boundaries; Survey.
Marital Relationship
I. Disqualification of husband or wife as witness for the other
II. Privilege not to be witness against the other
III. Privilege for communications
I. Disqualification of husband or wife as witness for the other
history and general principle s 600-604
policy of rule 601
statutory alterations 602
common law rule 603
waiver 604
distinction between disqualification and privilege s 2334
who is excluded s 605
marriage subsequent to crime note four 605
in bigamy s 605
on whose behalf excluded . s 606-610
interest in cause '. s 607
nominal party s 607
spouse of nominal party s 607
co-defendants s 609
spouse of co-defendant s 609
effect of death or divorce s 610
effect of enabling-statutes s 608
exceptions to the rule S 612-617
injuries, bailments, account books s 612
statutory exceptions, provisions, and abolitions .... s 613, s 617, 619, 620
separate estate s 614
wife " as if unmarried," cessation of disqualification . s 615
agent, other spouse as s 616
statutory abolition 619, 620
impeachment of witness by s 949
under exceptions to the Hearsay rule 17 si
bastardizing the issue s 2063
II. Privilege not to be witness against the other
history and policy 2227, 2228
marriage after process begun . '. note four 605, a 2230
paramour s 2230
bigamist s 2231
874
INDEX OF TOPICS
[Figurea set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
lur -i 1 « , . Section
Jnantal Relationship (.continued).
disputed marriage s 2231
agent's admissions S 2232
production of doeumemts s 2233
testimony obtained by information gained from the wife . . . note one SS33
what testimony is prohibited
husband or wife not a party 2234, s 2235
bankruptcy s 2235
pauper-settlement s 2235
adultery, etc s 2235
co-indictee, co-defendant s 2236
person deceased or divorced s 2237
exceptions by necessity s 2239
abduction g 2239
abortion s 2239
adultery s 2239
assault and battery s 2239
divorce . g 2239
incest ,• ■ ■ s 2239
injury to property s 2239
poisoning g 2239
rape g 2239
by statute g 2240
exceptions by statute; separate estate s 2240
agency 3 2240
whose is the privilege g 2241
waiver g 2242
inference from claiming it s 2243
privilege inoperative unless claimed s 2243
statutory abohtion . . . s 2245
III.- Privilege for communications
history and poUcy 2332, 2333
distinction between privilege and disquaUfication s 2334
statutes ' g 2334
scope of the privilege s 2336-2338
confidence to be judged from circumstances s 2336
communications but not acts privileged s 2337
third persons overhearing s 2339
communicative documents in possession of third person s 2339
who may claim; waiver s 2340
death and divorce s 2341
separation or unlawfid cbhabitation s 2341
see also Husband; Wipe; Markiage; Divorce; Legitimacy.
[Examine analyses on " Marital Relationship as a Disqualification,"
Vol. I, p. 728; " Privilege for Anti-Marital Facts," Vol. Ill, p. 3034;
and " Communications 'between Husband and Wife," Vol. IV, p.
3257.]
Mark, illiterate's signature by; see Illiterate.
on logs, as evidence s 150
register of s 1647
Market Reports, admissible in evidence s 1704
Market Value; see Value.
Marksman; see Illiterate.
Marriage, breach of promise of; see Breach op Promise.
birth during, as evidence of legitimacy 164
prior coverture, as evidence s 382
certificate of, as evidence 268, s 1645
habit and repute, as evidence 268, s 2083
reputation, as evidence 1602, s 2083
875
\
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; s 1673 refer to bott.]
Section
Marriage {continued).
utterances of the parties as res gesioe s 1770
proof of marriage in fact s 2082
meaning of " marriage in fact " i. S 2082
conduct as evidencing prior consent S 2083
authentication of certificate of note three s 2159
admissions s 2086
register of, as evidence; see Register of Marriage, Birth, and Death.
contracted in jest 2414
statement concerning, as hear&ay; see Family History.
presumption of consent S 2505
of capacity S 2506
of legitimacy s 2527
of coercion S 2514
of identity s 2529
valid, presumed in bigamy S 2506
husband or wife privileged by; see Marital Relationship.
privileged communications in; see Marital Relationship.
see also Foreign Law; Legitimacy; Husband; Wife; Certificate.
Married Woman; see Marital Relationship; Wife; Bastardy; Marriage. .
Master; see Employer; Schoolmaster.
Materiality, distinguished from admissibility 2
Mayhem, ascertained by inspection s 1152
Meaning; see Interpretation.
Means of action, as evidence of an act done 83
Measures, false, other acts evidencing intent . . . . ' . s 341
Medical Books, used in evidence s 1690-1700
Medical Matters, witness' experience or knowledge as qualifying him s 568, s 687
knowledge based on study of books S 687
see also Physician; Expert Witness; Opinion Rule.
Medical Treatment, whether, is proper, as evidenced by acts of others . . . s 461
see also Malpractice; Physician; Skill.
Medicine, similar acts of unlawful prescription note nine 367
Mcense to practise, as qualifying a witness s 569
Member of Congress; see Congress.
Memorandum to aid recollection; see Recollection.
Memory, belief or impression as showing sufftcient • 726
modes of refreshing or aiding; see Recollection.
discrediting a witness by his lack of; see Impeachment.
Mental Capacity, to do an act 86
see also Sanity; Will.
Mental Condition, disproving objective facts causing insanity or excitement . 263
see also Sanity; Intent; Malice; Motive; Knowledge; Insane
Belief; Insanity.
Mental Condition, Declarations of
(a) Pain and Suffering
(b) Design, Intent, Motive, etc.
(c) Testator
(d) Sundries
' (a) Pain and Suffering
to a physician or layman 3 1719
to a physician, discriminated 1720, s 1722
after litigation begun s 1721
past events S 1722
failure to complain, as evidence note two s 1722, 1723
(b) Design, Intent, Motive, etc.
design or plan to act ' g 1725
intent in domicil s 1727
intent in bankruptcy 1728
876
INDEX OF TOPICS
[Figures set thua: 1678 refer to main treatise; 1878 (italics) refer to supplement; s 1678 refer to both.]
Section
Mental Condition {continued).
motive or reason s 1729
alarm s 1730
affection s 1730
bias s 1730
disgust s 1730
emotion ; s 1730
fear s 1730
malice s 1730
opinion and belief 1731
accused person's statements s 1732
(c) Testator
ante-testamentary statements of intent 1735
post-testamentary statements of contents, etc s 1736
intent to revoke s 1737
undue influence or fraud s 1738
inteUigenee or sanity ' . . s 1739, 1740
(d) Sundries 1790
exception to the Hearsay rule 1714
see also Knowledge; Intent; Malice; Motive; Sanity.
[Examine analysis on " Declarations of a Mental Condition,"
Vol. Ill, p. 2203.]
Microscope, used by witness or jury .... s 795, s 1152
Midwife as a witness; see Expert Witness; Opinion Rule.
Military records, as evidence s 1641
privilege against disclosure of secrets S 2375
MUl; see Machine; Spabks.
Mind, testimony to state of another's s 661
Mine, inspection of notes Jour and six 1862
see also Premises.
Minister Plenipotentiary; see Ambassador.
Minister of Religion; see Priest.
Minor; see Child; Liqttob-selling; Age.
Minutes of clerk of court; see Judicial Record.
Miscarriage; see Abortion; Personal Injury.
Misconduct of a juror s 2354
Mistake, proof of, by parol evidence; see Parol Evidence Rule.
names inserted or omitted by . . . note one s 2421
in signing bill of exchange s 2415-2419
by circumstantial evidence; see Intent.
Mistress; see Paramour.
Mitigation of Damages; see Damages.
Mob, violence by, other acts as evidencing intent s 367, 1790
statements by note three 1079
Model, used to illustrate testimony 790
verification of . 793
Money, possession of, as evidence of loan or payment s 89, 224
as evidence of larceny 32, s 154
offer of, to injured party in criminal case may be inadmissible ^79
lack of, as evidence of motive s 392
to negative large stock of goods in fire loss note one 89
experience of expert to quality of s 570
evidence of counterfeiting; see Counterfeiting.
testimony to genuineness of ; see Paper Money; Handwriting.
receipt of, as impeaching a witness; see Corruption.
payment of, mode of proving; see Payment.
see also Value.
Morphine, use of, as disqualifying a witness s 499, s 500
as impeaching a witness s 934
877
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Mortality Table, used in evidence s 1698
judicially noticed note seven 2566
Mortgage, other transactions as evidence of debtor's intent ; see Fraud ; Fraud-
ulent Transfers ; False Representation.
agreement to hold deed as, shown by parol ' s 2437
admissions of mortgagor or mortgagee s 1082,, s 1779
production of original; see Original Document.
see also Deed; Sale.
Mother, statenients of, to evidence pedigree; see Family History.
insanity of, as evidence 3 232
testimony to bastardy S 2063
see also Legitimacy; Bastardy.
Motion, for a nonsuit or verdict S 2495
to exclude all evidence . . . . .^ S 2495
to produce documents, on trial; see Original Document. '
before trial; see Discovery.
to strike out
where objection is tardily made 18
where evidence was conditionally admitted 14:, 18, 1871
where corroborating evidence fails 18, 2030-2091
where the plaintiff's evidence as a whole is not sufficient to go to the jury 18, 2494
where an answer is non-responsjve 18, 785
see also Objection.
Motive
In general
1. Circumstances creating a motive
2. Conduct exhibiting a motive
3. Prior and subsequent motive
4. Sundries
In general
as evidence of an act S 117-119
an ambiguous term 117
general theory of 385
1. Circumstances creating a motive
general principle 389
motive for murder S 390
motive for other acts and crimes s 391
pecuniary circumstances as a motive 155, s 392
legal liability as a motive 8 393
2. Conduct exhibiting a motive
in general s 394
3. Prior and subsequent motive
hostility > s 359-397
sexual passion s 398-402
malice in defamation s 403-406
4. Sundries
necessity of showing, to establish crime s 118
existence of affection as negative, in homicide s 118
as a fact in issue ; 119
third person's motive, to evidence accused's innocence s 141
testifying to another person's motive s 661
to one's own motive S 581
proof by opinion testimony 1962
by declarations; see Mental Condition, Declarations op. ■
by reputation or iirformation; see Knowledge.
[Examine analysis on " Evidence to prove Emotion," Vol. I, p. 466.]
Multiple admissibility 13
Municipal Corporation; see Corporation; Public Document.
ordinance or charter of, judicially noticed s 2572
878
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Murder; see Homicide.
Mutual Mistake, under parol evidence rule 2417
clear proof of s 2498
N
Name, as evidence of identity s 270, s 413
charactered, as evidence of ownership . notes four and five 150
falsity or non-existence of person evidenced by failure to find . . note one 158
fictitious nature of, evidenced by failure of search 168, 667
use of false, as evidence of guilt s 276
testimony to knowledge of s 667
identity of, as raising presumption .... s 2529
Narrative, as unsound, in res gestce .... 1756
as used for statements of pain note one s 1722
Nationality, as evidenced by corporal traits s 167
as disqualifying a witness s 516
Naturalization, statutes requiring citizens' testimony in note seven 616
Naval register, as evidence s 1641
Necessity, opinion testimony to s 1960
Negative instances, as evidencing cause or condition 448
observation, as showing that a thing did not occur s 664
Negligence, character for, to evidence an act s 65
character for, as in issue s 80
habit of, as evidence s 93, 97
particular acts, as evidence of character s 199, s 208
unfair surprise in showing acts of s 199
employee's acts and repute, as evidencing employer's knowledge . s 249, s 250
evidenced by insurance against accident s 282, s 393, s 949, s 969
subsequent repairs to evidence s 283
other instances as evidence of habit of s 376
defects of apparatus as evidence of • s 441-461
regulations of railroad as measure of note one 461
other spark-emissions, as evidence of a defective locomotive 452
other persons' conduct, as evidencing a standard s 461
affected by statute or ordinance note one 461
constitutionaUty of statute making hable without negligence .... s 1354
making prima facie evidence of negligence . s 1354
proved by reputation s 1621
by opinion evidence, of conduct 1949
of character s 1984
presumption of s 2507-2510
contributory s 2507
loss by bailee, carrier , s 2508
defective apparatus s 2509
in injury to employee s 2509
death by violence s 2510
judge or jury to determine 2552
jury may use general knowledge to determine s 2570
in medical treatment; see Physician.
see also Repairs'.
Negotiable Instrument, admissions as applied to 1084
signed by officer of corporation S 2444
■ raising presumption of consideration s 2520
see also Bill of Exchange; Note; Payment; Parol Evidence Rule.
Negro; see Race.
Newspaper,. notice in, as evidencing knowledge s 255
quotations of prices, as evidence of value s 719, s 1704
affidavit of publication of notice in s 1710
879
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.1
Section
Newspaper, oommunications to, not privileged s 2286
see also Printed Matter.
New Trial, motion for, as conflrming an exception s 20
error of ruling as ground for s 21
the Orthodox EngUsh Rule and the Exchequer Rule concerning .... s 21
whether required for omission of oath s 1819
granted for withholding evidence S 290
validity on, of former judicial admission s 2593
Night, evidence of power of vision at s 460
Noise; see Sound. •
Nolo Contendere as an admission s 1066
Non-access, as evidence of illegitimacy 134, 135, 137
parent's testimony to s 2063
rule not abolished by aboUtion jof disqualification by interest note fourteen s 2063
see also Bastardy.
Non-occurrence of an event as shown by failure to see or hear 160
Non-residence, evidenced by failure of search 158, 667
Non-suit, motion for a s 2495
Notary, using an entry to aid recollection; see Recollection.
habit of, maihng notice of protest S 98
record of protest, producing the original of s 1240
whether conclusive s 1352
regular entries of transactions by; see Regular Entries.
personal knowledge required s 1635
certificate of protest s 1675
of deed-acknowledgment s 1676
conclusive in Louisiana law 135S
seal presumed genuine S 2165
power to comp,el testimony s 2195
see also Public Officer.
Note or memorandum, of testimony; see Former Testimony.
of stenographer, attorney, juryman as official' statements S 1669
of a transaction, used to aid recollection; see Recollection.
Note, Promissory, forgery of; see Forgery.
payment of; see Payment.
agent's authority to make; see Agency.
impeaching one's own 529
presumption of title from possession of s 2516
of payment S 2517, S 2518
admissions of assignor, indorser, etc 1084
production of original; see Original Document.
indorsement on, as statement against interest s 1460, s 1466
protest of, as evidence s 1675
signed by mistake s 2415
delivery in escrow, shown by parol S 2409, s 2420
collateral agreement, shown by parol s 2443-2445
Notice (a state of mind) ; see Knowledge.
Nqt^ice (a communication)
(a) to produce a document
(b) to fix liability for dishonor of bill
(c) to quit
(d) to take deposition
(e) sundries
(a) to produce a document
as permitting use of copy
notice to opponent 1202
when not necessary s 1203
when sufficient 1204-1209
stolen original document 1205
880
INDEX OF TOPICS
IFigures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Notice, exceptions to the rule s 1207
procedure of giving notice s 1208
to agent S 1208
notice to third person s 1212
as compelling opponent's production of original s 2219
as obtaining discovery before trial s 1858
(b) to fix liability for dishonor of bill
evidenced by mailing s 95
(o) to quit, as an admission of tenancy s 1072
notice to produce a ^ 1206
(d) to take deposition s 1378
(e) sundries
publication of, proved by afiadavit s 1710
giving of, as res gestm s 1770, 1789
see also Original Document.
[Examine analysis of " Production of Documentary Originals," Vol. II,
p. 1383.]
Novation, shown by parol s 2441
Nmsance, provable by other instances s 451
railroad as s 451
amount of business to evidence s 462
provable by reputation s 1620
by noise, reproduced with phonograph 795
Nul Tiel Record, original required in 1216
tried by inspection s 2555
Number of witnesses; see Witnesses, VII.
Nuncupative Will, proved by two witnesses s 2050
Nurse, as a witness; see Expert Witness; Opinion Rule.
O
Oath, 1. At Common Law
2. Under Statutes
3. Sundries
1. At Common Law
history s 1815
theory s 1816
IdndofbeUef 1817
form of oath s 1818
time of administration and of objection s 1819
if omitted, whether new trial required s 1819
capacity
disqualification under exceptions to Hearsay rule 1761
mode of ascertaining . . s 1820
infants s 1821
lunatics, idiots 1822
distinguished from testimonial capacity 1823
persons subjected to
interpreters, showers to jury 1824
peers, accused person s 1825
whether a witness merely sworn is impeachable s 1893
2. Under Statutes
abohtion or dispensation s 1827, s 1828
form, capacity, proof, etc 1829
3. Sundries
history of, in parties' disquaUflcation s 575
confession made on examination under 842
statement out of court under oath, excluded 1362, 1364
beUef on, by witness to character s 1985
[Examine analysis of " Prophylactic Rules," Vol. Ill, p. 2347.]
' 881
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.J
Section
Objection to evidence, time and form of , . . s 18
as immaterial, incompetent, and irrelevant v S 18
general, if overruled may not avail s 18
specific, if overruled will be effective to an extent s 18
how waived s 18
see also Waiver.
ruling upon an s 18, S 19
distinguished from exception s 20
to witness' quaUfications S 18, 486, s 586
by party, claiming privilege for witness 2196, s 2270
renewal of, at close of case s 2496
ruling oil an, must be immediate and final s 19
to deposition; see Deposition.
Obligor, impeaching his own obUgation 529
admissions of co-obligor S 1077
Obscenity of pictures, standard of s 461
proof of 793
Observation, capacity of 493
discredited by defective sight note two 934
Occupancy, evidenced by assessor's books s 1640
0£Eence; see Crime.
Offender, habitual; see Habitual Criminal; Common Opfendbb.
OfEer of evidence, form and tenor s 17
cannot result from exchange of words between court and attorney ... s 17
time to make s 1866 et seg.
improper statements of counsel in 1806
after argument begun S 187S /
to compromise, as an admission s 1061
Office, production of original appointment to 1228
presumption of title to 272, s 2168, s 2534, s 2535
holding, evidenced from prior incumbency . . s 382
of duty performed in s 2534
Office Copy; see Certified Copt.
Officer, public; see Public Officer.
of a corporation, testifying on the faith of records s 665
see also Corporation. \
Official; see Public Officer.
Official Certificate, contradicting one's own s 530
Official Communications, privilege for s 2375
see also State.
Official Gazette, as evidence of a law s 1684
Official Record; see Public Document.
Official Signattue to document, not of attesting witness s 1292
Official Statements; see Public Document.
Omission, to speak or claim, as a self-contradiction s 1042
as an admission s 1072
of child by testator intentionally S 2475
Opening Statement, not evidenced afterwards note one s 1808
Opinion of value, as based on other sales s 463
stating the grounds of, by an expert s 561
knowledge, as distinguished from 658
as sufficient in point of memory 726
hypothetical question; see Hypothetical Question.
as evidence of handwriting; see Handwriting.
impeachment by inconsistent s 1041
statements of pohtical views s 1732
by ordinary witness 1917, 1924, 1926
distinction between fact and 1919
admissible when preceded by facts s 1922
882
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.l
Section
Opinion (continued)
as to value of services s 1944
personal injuries s 1944
breach of contract S 1944
cost of living s 1944
of business, etc s 1944
as to care 1950
moral cbaracter 1950
professional skill 1950
reasonableness 1950
safety, etc 1950
religious, privilege for 2214
political, privilege for . ' S 2215
judicial; see Judicial Decision.
see also Expert Witness; Opinion Rule.
Opinion Rule
(a) in general
(b) rule applied to specific topics
(c) law
(d) state of mind
(e) sundry topics
(f) character
(g) handwriting
(a) in general ' ,
distinguished from rule for expert qualifications 557
history 1917
competency of ordinary witness to give opinion 1917, 1924
theory S 1918-1922
distinction between fact and opinion 1919
usurping functions of the jury S 1920
practical tests 1923-1927
form of rule negative or afflrmative 1928
hypothetical questions ' s 672-684
(b) rule applied to specific topics
insanity s 1933-1938
value and damages s 1940-1944
insurance risk s 1946, 1947
care, safety, prudence, duty, skill, or propriety of human conduct or a
place, machine, or apparatus 3 1949-1951
(c) law
foreign law s 1953
trade usage 1954
technical words in documents s 1955
location of deed-descriptions s 1956
contents of a lost document s 1957
testator's or grantor's capacity s 1958
accused's capacity s 1958
infant's capacity note two 1958
solvency 1959
possession .- . 3 1960
ownership -. . . S 1960
necessity s 1960
authority, etc 3 1960
miscellaneous applications of note seven s 1960
(d) state of mind
intent, motive, purpose, in general s 1963
another person's intention 1964
one's own intention 1965, S 1966
intent in dedication, voting, etc s 1967
883
INDEX OF TOPICS
[Figurea set thua: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Opinion Rule {continued).
meaning of a conversation, etc s 1969
impression or understanding 3 1970, 1971
(e) sundry topics
corporal appearances s 1974
medical and surgical matters s 1975
probability and possibility s 1976
capacity and tendency s 1976
cause and effect s 1976
distance s 1977
time s 1977
speed s 1977
size s 1977
weight .... J s 1977
direction s 1977
form s 1977
identity S 1977
miscellaneous topics note seven s 1960, s 1978
rule enforced for dying declarations s 1447
for books of regular entry 1533
for declarations about boundaries 1569
(f) character
moral of a defendant 1981, s 1983
of a witness s 1982-1985
care, competence, or skill s 1984
(g) handwriting; see Handwriting.
[Examine analysis on " Opinion Rule," Vol. I, pp. xli-xlii.]
Opimn, use of, as disqualifjring a witness s 500
as impeaching a witness s 934, s 1005
Opponent, called as witness, whether he may be impeached s 916
treated as if on cross-examination . . note one 1884
destruction of a document by s 1198, 1199, s 1207
deposition of, when absent s 1416
taking, but not using a witness' deposition s 1389
see also Admission; Defendant; Parties.
Opportunity in general, as evidence of a crime or other act s 131-134
must be shown in advance that witness had, to observe 34
exclusive, to do an act 131
explaining away 132
equal, for others 132, s 133
Oral admission of a party; see Admissions.
distinction between " oral " and " verbal " .... note one 266, note one 2094
Order of topics of testimony; see Examination, III.
Ordinance, judicial notice of s 2572
certified copy of s 1680
printed copy of ' s 1864
afifecting negligence note one 461
Original Document
(a) in general
(b) scope of the rule, as to writings
(c) production required
(d) excuses for not producing
(e) what is the original
(f) not applicable where contents are not in issue
(g) exceptions to the rule
(h) rules for proof of copy
(a) in general
history of the rule requiring production s 1177
general principle 1179
884
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to bothj
Section
Original Document {continued).
(b) scope of the rule, as to writings
uninscribed chattels s 1181
inscribed chattels s 1182
all kinds of writings 1183
books of account or regular entry / . . . . s 1532, s 1558
(c) production required
what is production , 1185
for whose benefit ' 1185
opponent's refusal to produce, as evidence of genuineness 1298
original always usable s 1186
proving execution also 1187, 1188
order of proof between execution, loss, and contents 1189
copy also offered s 1190
in larceny of 1205
(d) excuses for not producing
loss or destruction s 1193-1198
expert testimony to genuineness of lost document note four 1393
afiBdavit of party, to loss of s 1196
sufficiency of search for s 1194
proof of loss, by opponent's admission s 1196
proof of loss established by record of judgment s 1196
fraudulent suppression by opponent 1197, s 1207, s 1209
larceny of . 1196, 1197, s 1200, s 1207
lost, supplied by affidavit 1197
intentional destruction by proponent, presumed contents . . s 291, s 1198
detention by opponent; notice to produce s 1199-1210
control of, is possession s 1200
out of jurisdiction may stiU be in possession s 1200, s 1207
transfer of possession s 1200
mode of proving possession s 1201
possession of document sent by mail s 1201, s 1203
notice in general 1202
notice to third person note two a 1200, s 1208
both notice and possession must be shown s 1203
rule of notice not applicable s 1203
rule of notice satisfied 1204
document in court, instant demand 1204
notice by implication 1205
"collateral " documents 1205
notice unnecessary at subsequent trial 1205
subject to privilege against self-crimination s 1207
recorded deed provable by copy s 1207
waiver of notice to produce s 1207
notice to agent s 1208
who should give notice s 1208
time of giving notice s 1208
attorney's possession as privileged s 1201, s 2309
party notified, out of jurisdiction s 1208
tenor and form of notice s 1208
what is non-production s 1209
consequences of non-production . . s 1210
inference from non-production S 1210
possession by third person s 1211-1213
person not compellable to produce s 1212
fraudulent retention by third person s 1212
subpoena duces tecum S 1212
possession by proponent's co-party s 1212
foreign public document . . . s 1213
885
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Original Document {continued).
irremovable documents 1214
judicial records (pleadings, wills, etc.) s 1215-1217
part of record in trial at bar s 1215
lost judicial record restored by decree . . . note three 1215, s 1347, s 1660
exception for nul tiel record and perjury 1216
other official documents s 1218-1222
office working documents 1218
made by private person and filed in public office 1218
producing legislative journals s 1219
election records note three s 1219, s 1223
corporation books note three s 1219, s 1223
marriage records, etc note three s 1219, s 1223
specific instances under statutes 1220
books of banks, abstracts, etc s 1223
of regular entry s 1532, s 1558
recorded conveyances s 1224-1227
appointments to office 1228
illegible documents 1229
voluminous records, accounts, etc s 1230
absence of entries s 1320
(e) what is the original
may mean a copy 1231
duplicates and counterparts S 1232-1234
printed matter s 1234, s 1237
copy acted on as original s 1235
account stated S 1235
telegraphic dispatches ' S 1236
wills, etc; ^ 1238
land-grants s 1239
mining rights, etc S 1239
tax-Usts s 1240
ballots, etc s 1240
records 1241
accounts, etc 1241
memorandum to aid recollection S 749, s 760
handwriting shown by photograph s 797
ledger and day book . . . ' s 1558
(f) not applicable where contents are not in issue
document read aloud, etc S 1243
knowledge or belief about s 1243
identity or effect of a document s 1244
payment, receipts 1245
ownership s 1246, 1247
tenancy s 1246, 1247
sale s 1246, 1247
gift s 1246, 1247
execution 1248
delivery 1248
pubUcation 1248
conversion s 1249
forgery s 1249
larceny s 1249
agency, etc s 1249
miscellaneous instances s 1250
dying declarations 1449
pedigree statements 1497
(g) exceptions to the rule
stolen document s 1249
886
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
. . Section
Ongmal Document {continued).
collateral facts s 1252-1254
opponent's admission of contents 3 1082, s 1255, s 1256
deed-recitals, disclaimer of title s 1257
New York rule on deed-recitals s 1257
proving partnership irrespective of articles S 1257
witness' admission on voir dire 1258
witness' admission on cross-examination s 1259
self-contradictory document s 1259
prior statements in depositions s 1262
record of conviction s 1270
foreign statute s 1271
secondary evidence of contents s 1264 et seq.
(h) rules Jor proof of copy
copy preferred to recollection • . s 1268
preferable kinds of recollection s 1272
preference for examined or sworn copy s 1273, 1337
copy of a copy 1274
personal knowledge of correctness 1278
loss proved by affidavit 1709
whole must be copied s 2105
proof of lost will s 2052
of lost ancient deed s 2143
see also Copy; Certified Copt.
[Examine analysis on " Production of Documentary Originals,"
Vol. II, pp. 1383, 1384.]
Other Ofiences; see Similar Acts.
Overruling an objection s 18
Overt Act; see Homicide; Treason.
Owner of an animal, mode of evidencing knowledge s 251
of a dangerous place or machine, mode of evidencing knowledge . . . . S 252
admissions by; see Admissions.
complaint by, after robbery or larceny 1142
declarations of, about boundaries; see Boundaries.
testimony in larceny required s 2089
Ownership by adverse possession; see Possession.
tag on automobile as prima facie evidence of note four 150
unrecorded brands to evidence note two 150
conduct of animals as evidence of s 177, s 1154
taking of policy, as evidence of note four 282
as evidenced by prior ownership s 382
admissions of; see Admissions.
production of deed, in proof of fact of s 1246
reputation to show, of premises or vehicles, by railroad .... note eight 1587
evidenced by assessor's books S 1640
opinion testimony to s 1960
presumption of, from possession s 2515
continuity of s 2530
possessor's declarations to confirm s 1779
in common, presumption of s 2526
see also Title.
Oyer and Profert, when excused 1192
as a means of inspection before trial s 1858, s 1859
P
Pain, expressions of 1718
explaining away evidence of qualities of dental invention to allay .... 35
failure to complain of note two s 1722
see also Mental Condition, Declarations op.
887
INDEX OF TOPICS
[Figures set thua: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to bothj
Section
Paper to aid recollection; see Recollection.
see also Document; Newspaper.
Paper Money, expert qualifications of witness to s 570, 705
Paramour, as furnishing a motive; see Motive.
as qualified to testify s 605, s 2230
Pardon, promise of, as excluding a confession 834
as restoring a witness' credit s 1116, noie/ow 2280
a witness' competency S 523
as removing privilege against self-crimination 2280
Parent, admissions of, as evidence of advancement to child 1777
Parentage; see Legitimacy; Paternity; Family History.
Parish Register; see Register of Marriage, Birth, and Death.
Parol Evidence Rule ,
Introduction
A. Creation o/ Legal Acts
1. Subject, tenor, delivery, in general
2. Intent and mistake
3. Voidable acts
B. Integration of Legal Acts (varying the terms of an instrument)
1. Unilateral acts
2. Bilateral acts
3. Writing required by Law
C. Solemnization of Legal Acts
D. Interpretation of Legal Acts
1. Standard of interpretation
2. Sources of interpretation
Introduction
not a rule of evidence 2400
lex fori not appUoable to s 5
rules defining the constitution of legal acts 2401
A. Creation of Legal Acts
general principle; intent and expression; subject, tenor, and delivery . 2404'
history of the principle 2405
1. Subject, tenor, delivery, in general
transactions of jest, friendship, charity, and pretence s 2406
explaining signature of attesting witness s 2406
terms must be definite; document void for uncertainty 2407
act must be final; deHvery, as appUed to deeds; conditions precedent;
escrows s 2408
delivery as appUed to negotiable instruments s 2409
delivery, as applied to contracts in general; conditions precedent and
subsequent; assent of third persons; blanks; dates s 2410
pubUeation as applied to wills 2411
2. Intent and mistake
intention and mistake in general; test of reasonable consequences . . 2413
intent not to be bound at all 2414
terms of an act; (a) signing a completed document; individual mistake,
not known to or induced by the second party s 2415
individual mistake known to or induced by the second party . . s 2416
mutual mistake; general principle 2417
mutual mistake as affecting bona fide holders for value S 2418
(6) signing a document having blanks or capable of alteration; writing
one's name not as a signature 2419
delivery of a document; escrow; deeds or negotiable instruments de-
livered to bona fide holders, contrary to intent of maker .... s 2420
unilateral acts; foregoing principles applied to wills ind ballots . . s 2421
3. Voidable acts
motive as making an act voidable; mistake, fraud, duress, infancy, and
insanity s 2423
888
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Paxol Evidence Eule {continued).
B. Integration of Legal Acts {varying the terms of an instrument)
general theory of the rule against varying the terms of an instrument S 2425
history of the rule 2426
1. Unilateral Acts
official documents (surveys, appointments, assessments, etc.) .... 2427
2. Bilateral Acts
no integration at aU; casual memoranda ... S 2429
partial integration; general test for applying the rules; " collateral
agreements " 2430
incorrect tests; fraud, in Pennsylvania 2431
receipts and releases; bill of lading s 2432
recital of consideration in a deed s 2433
warranty in a sale; insurance warranties s 2434
agreements noli to sue, or not to enforce, or to hold conditional only . 2435
agreements of counterclaim, set-off, renewal, or mode'of payment . . 2435
agreement to hold a deed absolute as conditional only; agreement to
hold in trust s 2437
agreement to hold as agent or surety only s 2438
fraud S 2439
trade usage and custom S 2440
novation, alteration, and waiver; subsequent agreements .... s 2441
miscellaneous applications of the rule to admit or exclude " collateral
agreements " s 2442
rule applied to negotiable instruments; general principle 2443
agreements affecting the express terms of the document .... S 2444
agreements affecting the implied terms S 2445
rule binding upon the parties to the document only s 2446
burden of proof; who must produce the docuihent 2447
3. Writing required by Law
at common law
judicial records s 2450
corporate acts and records; negotiable instruments .... s 2451
under statutes
wills; ballots; insurance policies s 2452
conclusive certificates, distinguished s 2543
C. Solemnization of Legal Acts
writing as a formality; statute of frauds s 2454
discharge and alteration of specialties, etc v s 2455
other formalities than writing; signature, seal, attestation, registration,
stamp 2456
D. Interpretation of Legal Acts
general nature of interpretation; standard and sources of interpretation 2458
" Intention " and " Meaning " distinguished 2469
1. Standard of Interpretation
general principle: four standards, — popular, local, mutual, individual s 2461
rule against " disturbing a plain meaning," or, forbidding explanation ex-
cept of ambiguities; history and general principle s 2462
application of the rule to wills, deeds, etc s 1956, s 2463
usage of trade or locahty, when to apply s 2464
parties' mutual understanding; identifying a description .... s 2465
individual party's meaning; deeds and contracts s 2466
wiUs s 2467
2. Sources of Interpretation
general principle; aU extrinsic circumstances may be considered . . . 2470
exception for declarations of intention s 2471
for equivocation or latent ambiguity s 2472
blanks and patent ambiguities . , s 2473
for erroneous description s 2474
889
INDEX OF TOPICS
(Figures aet thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Parol Evidence Rule {continued).
for rebutting an equity (legacies and advancements) . . s 2475
falsa demonstratio non nocet; general principle 2476
application to deeds and wills s 2477
not applicable to books of account 1S58
sundry rules; interpretation of statutes s 2478
[Examine analysis of " Parol Evidence Rule," Vol. IV, pp. 3367, 3368.]
Particular Acts, to evidence character, in general s 192-201
to evidence character for negligence s 199, s 208
bad character of defendant 193, s 194
good character of defendant 195
of misconduct of defendant to impeach credit or increase sentence . . . S 196
to evidence character in homicide , S 198
to show negUgenoe in civil oases s 199
of unchastity, to attack character of woman as witness s 200
to show character of complainant in rape S 200
of animal to show disposition s 201
to evidence character of common offenders s 203
of prostitutes to show occupation . 204
of prostitution to show character of house 204
to show unchastity, in action for breach of promise 206
to show incompetency of employee or physician s 208
admissible to prove character, but not reputation s 209
inadmissible to mitigate damages in defamation s 209
to show father's or daughter's character, in action for seduction .... 210
shown to mitigate damages, in seduction 210
to show system in crime 215
to impeach witness 979
to impeach expert 99, s 1005, s 1022
see also Similar Acts; Act; Particular Instances.
Particular Instances, of conduct as evidencing human character, etc. ; see
Character; Strength; Health; Negligence; Particular Acts;
Similar Acts; Act.
of injury, work, speed, etc., as evidencing cause or condition of a thing s 447-461
Parties
character of
to prove an act
in criminal cases s 55-61
in civil cases s 64^67
in issue s 70-80
to mitigate damages s 70-76
conduct of, to evidence character s 192-213
to evidence consciousness of weak case s 277-291
failure to testify or produce evidence s 285-289
common law disqualification as witnesses 577
testifjdng to their own intent s 581
admissions by; see Admissions.
books of account of; see Books op Account.
agent or kinsman of, not to take deposition s 803
impeachment of their own witness; see Impeachment.
whether impeachable, when testifying for themselves 890
when called by the opponent s 916
opponent as witness, treated as if on cross-examination .... note one 1884
exhibiting injuries to jury s nsg
af&davit of, to lost document i s 1196, s 1225, 1709
former testimony of same g 1388
books of account kept by; see Regular Entries.
exclusion from court during testimony s 1841
disclosure of documents or testimony before trial; see Discovery.
890
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
_ Section
farties {continued).
testifying first on their own side s 1869
answer to interrogatories, as evidence s 2124
claiming privilege for witness 2196, s 2270
privileged not to testify 2217
discovery; statutes g 2218
production of documents s 2219
premises, chattels, bodily exposure s 2220, 2221
parol evidence rule, restricted to ... s 2446
■ understanding of, to aflfect a document; see Parol Evidence Rule.
burden of proof upon; see Burden of Proof.
Partner, admissions of s X077
Partnership, knowledge of, as evidenced by repute s 255
books of, as evidence g 1074
admissions made after dissolution note seven. 1078
evidence of subsequent, by prior note ten 382
proof of, without producing instrument s 1249, s 1257
provable by reputation s 1624
books of, presumed correct note two 2537
Passengers, behavior of, as evidence of danger s 461
Past Fact as " narrative " 1756
Pastor; see Clergyman.
Patent Ambiguity in a document . -. s 2472
Patent of InTention, producing original of assignment s 12^6
execution of assignment of, proved by record s 1657
inspection of machine before trial s 1161, s 1862
infringement of, privilege for trade secret s 2212, s 2374
Patent of Land; see Deed; Land-office.
Paternity, other intercourse as evidence of s 133, 134
improper familiarities with others to disprove s 133
procuring of abortion as evidence of s 282
child's resemblance, as evidence of s 166, s 1154, s 1168
see also Bastardy; Non-access.
Patient, physician's testimony to iUness of s 688
expressions of pain by 1718
privilege for communications to physician s 2380
Pavement, test when showing other injuries on, to evidence a particular injury 33
Payee, parol agreement of, collateral to instrument 2443
see also Bill or Exchange; Note.
Pajrment, possession of money, as evidence of s 89, 224
possession of instrument, as evidence of 156
offer of, as an admission s 1061
production of receipt for 1245, s 1254
indorsements of, as statements against interest s 1461, s 1466
books of account as evidence of s 1539, s 1549
words accompanying, as res gestm s 1777
agreement as to mode of, shown by parol 2436, s 2444
presumption of s 2517, s 2518
from indorsement on note note one SI 34
lapse of time as presumption of 159, s 2517
see also Contract; Money.
Pecuniary Condition as evidence of ability to make loan ....... 224
as evidence of motive ' s 392
Pedigree, hearsay statements of; see Family History.
statement in deposition to evidence 1495
of an animal, proved by reputation s 1621
by registry s 1706
inquisition of, by the heralds s 1670
see also Animal.
891
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both,]
Section
Peer, whether required to be sworn s 1825
Penalty, privilege ngt -to disclose s 2257
Penitent, privilege for communications to priest s 2394
Perambulations as evidence of boundary . ' 1563
Performance of ofQcial duty, presumed s 2534
of contract, burden of proof of S 2537
Perjury, other falsities, as evidencing intent in 342
in proving alibi s 279
confession of, as disqualifying a witness S 527
as impeaching a witness S 959
attem.pt at subornation of 960, 962
producing original of chancery answer in 1216
in inadmissible deposition note, twelve 1349
penalty for, as a requirement 1831
. in deposition s 1832
in answer erroneously compelled and falsely given note six 2270
two-witness rule 2040
committed in disclosure for amnesty s 2281
does not apply to act of swearing or words s 2042
does not apply to every detail of fact s 2042
rule in civil cases s 2042
subornation of, one witness rul6 not applied ■ ■ ■ W4^
testimony before grand jury, not privileged . . '. 2363
who is an accomplice in subornation of note one 2060
see also Falsehood.
Peipetuammemorlam; see Deposition.
Person; see Name.
Person in Authority; see Confession op Ckimb.
Personal Injury; see Corporal Injury.
Pharmacist, privileged communications to s 2382
required by statute to file reports of sales of liquor note twelve a 2264
Phonograph used to reproduce nuisance created by noise 795
Photograph of a person, as used to identify him s 660, 790
used by a witness to illustrate testimony s 790-797, 2019
witness using, need not be maker of s 794
verification of 793
objection to use of s 792
X-ray s 795
enlarged s 797
of handwriting s 797, 2010, 2019
process judicially noticed 2566
Physical traits to show race or nationaUty s 167
inconvenience of production of evidence s 1161
traits, to evidence strength; see Power.
Physician, character of, as defendant in malpractice 67
conduct, as evidencing negligence or incompetence of . . . s 199, s 200, s 208
unfair surprise in showing acts of incompetence by S 208
mode of treatment by another, as a standard of care s 461
qualified to be an expert witness s 569, s 687
license to practice, as qualifying an expert s 569
testimony of, to possible developments in corporal injury 663
acquaintance with person insane or diseased s 689
hypothetical question to; see Hypothetical Question.
witness to value of services of s 715
patient's expressions of pain to 1718
character for skill s 1984
amount of fee demandable as expert s 2203
privileged not to attend court 2206
inspection of injured person by . . . s 2220
892
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ,■ 1678 (italics) refer to supplement ; S 1678 refer to both.]
_ . Section
rnysician, privilege for patient's communications to s 2380
privilege of, as attesting witness s 2390
see also Malpractice; Opinion Rule; Poison; Physician and
Patient.
Physician and Patient, privileged communications s 2380
burden of proof of confidence s 2381
third person hearing s 2381
must be in professional character S 2382
not privileged on hypothetical question involving privileged facts . note five SS82
considtation of physicians s 2382
patient's beUef of matters necessary to treatment s 2383
communication may be by exhibition s 2384
insanity observed ... .... s 2384
privilege limited to tenor of communication s 2384
i}0 application to partaker in crime S 2385
request to commit crime note two s 2385
privilege is patient's S 2386
patient need not be party to cause to claim privilege note one 2386
inference from claim s 2386
claimed by representative of deceased s 2386
" shall not be compelled " means " shall not be allowed " ... note one 2386
death does not terminate privilege 2387
may be waived s 2388
waiver in insurance policy note six s 2388
by conduct s 2389
by bringing suit for malpractice s 2389
by testifying s 2389
at former trial . . s 2389
by asking physician to attest wiU s 2390
by calling physician as witness s 2390
by certificate in " proofs of death " s 2390
by personal representative s 2391
see also Physician.
[Examine analysis of " Communications between Physician and
Patient," Vol. IV, p. 2347.]
Picture, of a person or place, to illustrate testimony 790
see also Photograph; X-ray.
Pier; see Premises.
Pilot, as a necessary witness and therefore cross-examinable 917
Piracy; see Robbery; Copyright.
Pistol; see Weapon.
Place, condition in one, evidencing that in another s 437, s 438
value at another, as evidence of value s 463
character of a witness at another 929, s 1615
of birth, death, etc., as evidenced by family hearsay 1501
judicially noticed s 2576, s 2581
see also Premises.
Plaintiff, character of, as evidence s 64-67
character of, as in issue or as mitigating damages s 70-80
mode of evidencing character by conduct s 192-213
see also Parties.
Plan, used to illustrate testimony 790
see also Design; Survey.
Plat, used to illustrate a witness' testimony 790
see also Survey.
Platform; see Premises.
Plea of truth as evidence of malice; see Defamation.
of nolo contendere as admission note four 1066
of " guilty," as admission in civil case s 815
893
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Pleading, distinguished from evidence 2
from judicial admission 2589
as a party's admission s 1064
original in court records not produced S 1215
statement in, to evidence pedigree 1495
see also Judicial Record.
Pledge; see Mortgage.
Poison, evidence to show knowledge of " s 87
possession of, as indicating criminal design S 238
similar acts to show intent in administration of note six 111, s 363
nature of, as shown by samples 439
symptoms, as indicating nature of s 457
witness' experience as qualifying him s 568
statements while eating poisoned lunch note three a 1750
see also Homicide.
Poles, telegraph or telephone; see Negligence; Highway.
Police-officer obtaining a confession; see Confession.
Policy of insurance; see Insurance.
Poll-book; see Election.
Population, as evidenced by census s 1671
judicially noticed S 2577
Possession of tools, as evidence of a crime 88, s 238
of chattels to evidence crime 152, s 238, s 153
of money, as evidence of loan or payment s 89, 234
as evidence of larceny s 154, s 2513
as evidence of motive for crime, etc s 392
of a document, as evidence of knowledge S 260
as an admission S 1073
by opponent, as excusing non-production 1199
of receipts, etc., as evidence of payment 156
of deed, to evidence delivery and execution of it S 157
of land, continued after mortgage or sale as showing intent to defraud creditors 160
under ancient document as evidencing genuineness s 2141
as creating inference of deed s 157
as evidenced by a lease or deed s 157
by payment of taxes note two 157
by ancient document s 157
of forged documents, as evidence of intent 309
of stolen goods, as evidence of larceny, etc 152, s 153
other possession, as evidence of intent 324
accused's explanations 1143
presumption from S 2513
possessor's declarations of facts against interest S 1458
assessment-books as evidence of S 1640
statements about boundary, by a possessor; see Boundaries.
reputation about . s 1587
opinion testimony to < . . 3 1960
by grantor, raising presumption of fraud in sale s 2504
presumption of ownership from s 2515
of payment from, of receipt s 2518
of continuance of s 382, s 2530
of original document; see Original Document.
Adverse Possession
ancient documents, as evidence of s 157
knowledge of claim, as evidenced by repute s 254, s 255
possession of part, as evidencing possession of whole 378
under deed as evidence of boundaries 378
oral admissions of title s 1257
statements made during, as res gesice s 1778
894
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
■ Section
Possession (.continued).
as affecting presumptions of ownership . s 1779
see also Document; Deed.
Possibility of doing or happening, as evidenced by instances .... s 446-461
Posting in the maU; see Mail; Postmark.
on a wall or fence, original not required 1214
Postmark, as evidence 151
presuming genuineness of s 2152
as an official statement s 1674
Poverty, as evidence of non-payment , s 89
as negativing probability of loan s 89, 224
as evidence of motive for a crime or transaction . . 32, s 392
evidenced by assessor's books « . s 1640
Power, physical, as evidence of an act s 85
instances of physical, as evidence . ' s 220
Power of Attorney; see Agency.
Power of Legislature, to make rules of evidence s 7
Preamble of statute; see Recital.
Precautions to remedy or prevent injury s 282, s 461
Preferential Rules defined , 1172
Pregnancy, events in, as evidenced by birthmark s 168
admissible to show intercourse in rape, seduction, etc 168
see also Bastardy.
Prejudice, undue,
by showing particular criminal acts s l94
acts of negUgenoe in civil cases s 199
of unchastity s 200
of employee or physician in negligence . . . . s 208
not apphoable to conduct to show character in issue 202
as affecting order of evidence 1863
in circumstantial evidence 1904
Premises, owner's knowledge of defect, evidenced by prior condition or injury s 252
leased for gaining, proved by repute 26^
repairs, as evidence of negUgence 32, s 283
condition at another time or place, as evidence 437, s 438
instances of condition or quality, as evidence s 451
marks on, as evidence of identity 416
similar injuries, as evidence of defect s 458
similar precautions, as evidence of safety 461
photograph of, to illustrate testimony 790
inspection of, compellable at trial 1162, s 2194, 2221
before trial 1162, s 1862
presumption of defect, from accident s 2509
Preparation, as evidence of crime s 238
Preponderance of evidence ... s 2498
Prescription of title, by possession; see Possession.
of physician, as privileged ... s 2383
Presence as evidence of design to commit crime s 238
shown in burglary to be for another purpose s 391
President, privilege of 2368-2372
personal liability of one who signs as s 2444
Press Copies, as originals s 1234
Presumption of good character s 290
of continuity, founded on inference 4S7
of innocence s 1732, s 2511
not evidence in favor of accused note three s 2511
legal effect of 2490
distinction between, and inference note one 2490
of law and fact s 2491
895
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Presumption {continued).
conclusive 2492
conflicting, counter 2493
of felonious intent from taking of goods note Jour 5 2611
possession of stolen goods as a S 2513
of title, from possession or payment s 2516-2518
of consideration s 2520
of legitimacy in bastardy s 2527
of life, or death s 2531
see also Burden of Pboof.
conclusive; see Conclusiveness.
[Examine analysis of " Burdens and Presumptions," Vol. IV, pp. 3520i
2548.]
Presumptive evidence, as meaning circumstantial evidence 25
Pretences, false; see Representations.
Price; see Sales; Value.
Price-current, as qualifying a witness to value s 719
as admissible in evidence s 1704
Priest, confession to 840
privilege for communications to s 2394
see also Marriage.
Priest and Penitent, privileged communications created by statute ... s 2395
Prima Facie Evidence, statutes making s 7, s 1354
sufficient to go to jury s 2494
Primary Evidence; see Best Evidence; Original Document; Copy.
Principal, admissions of, against surety s 1077
agent's admissions against s 1078
undisclosed, shown by parol s 2438
joint, is accomplice note one s 2060
see also Agent.
Printed copy of public document
sundry documents s 1684
reports of decisions s 1684, 1703
statutes s 1684
see also Copy.
Printed Matter, as a duplicate original s 1234, s 1237
sample copies as evidence .......' 440
proving genuineness of
newspapers 2150
official statutes and reports 2151
see also Book; Mail; Newspaper.
Printer, official, authentication of copies of s 1684
Prior and Subsequent; see Time; Condition.
Prison, escape from, as evidence of guilt s 276
Private statute, judicial notice of s 2572
Privies in interest, admissions of; see Admissions.
Privilege
I. From Attending
II. From Testifying
(a) in general
(b) privileged topics
(c) privileged communications
III. Sundry Rules
I.. From Attending
no privilege in general s 2192
illness 2205
sex and occupation 2206
officers of government ' . 2206, 2371
distance from place of trial s 2207
896
INDEX OF TOPICS
IFigures set thus: 1678 refer to main treatise; 1878 (italics) refer to supplement; s 1678 refer to both.]
. Section
Privilege {continued).
subpoena s 2199
expenses s 2200
II. From Testifying
(a) in general
no privilege in general s 2192-2194
of ambassador 2372
oflcers having compulsory power s 2195
privilege personal to witness 2196
party may not object 2196
party excepting to improper ruling on privilege 2196
(b) privileged topics
irrelevant matters s 2210
documents of title, etc 2211
witness required to describe deed for identification . . . note three 2211
trade secrets s 2212
customers' names s 2212
official secrets s 2375
theological opinions 2214
political votes s 2215
waiver of voter's privilege s 2215
disgracing facts s 984-987, 2216, 2255
bodily exposure 2216
partly interested 2217
opponent compellable s 2218
production of documents s 2219
bodily exposure s 2220
premises and chattels 2221
witness interested 2222
civil liability in general S 2223
for incriminating matters in report made by requirement of law . . . 2284
husband and wife; see Marital Relationship.
self -crimination; see Self-cbimination.
(c) privileged communications
in general 2285
mere pledges of privacy and oaths of secrecy s 2286
clerks s 2286
commercial agency s 2286
bankers S 2286
trustees s 2286
newspapers, etc s 2286
telegrams 2287
of agent 2301, s 2317
attorney and client; see Attorney and Client.
husband and wife; see Marital Relationship.
physician and patient; see Physician and Patient.
petit jurors
communications s 2346
impeaching a verdict s 2348-2356
arbitrators ■ . . . , s 2358
grand jurors
vote and opinion 2361
witness' testimony 2362
grounds for indictment s 2364
number of votes s 2364
official communications s 2368-2376
government and informer s 2374
physician and patient s 2380-2391
priest and penitent s 2394-2396
897
INDEX Of topics
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both. J
Section
Privilege {continued).
offer of compromise s 1061
III. Sundry Rules
as permitting proof by copy, for privileged document s 1212
as excusing production of attesting witness 1317
as allowing use of deposition 1407
claim of, on cross-examination, as excluding the direct testimony . s 1391
books of account, from production ...... . . s 2193, 2205, s 2286
[Examine analysis of " Rules of Optional Exclusion," Vol. I, pp. xlv-
xlvii.]
Probable Cause for prosecution or arrest, evidence of belief of s 258
in malicious prosecution, burden of proof of 2539
judge or jury to determine 2554
Probate; see Will; Judicial Recced; Certified Copy; Attesting Witness.
Proceedings, presumption of regularity of s 2534
Process, special form to secure corporation books ^SOO
statute may create new forms of note three SI 93
see also Compulsory Process; Judicial Records; Constitutional
Rules.
Proclamations, Executive, to evidence certain propositions s 1662
Production of evidence in general, failure to make, as showing a weak case
277, s 285-291
of document or chattel
which party is bound to produce 2447
by opponent at trial s 2219
by witness s 2193
subpoena duces tecum s 2200
privilege against self-crimination s 2246
of attorney and client s 2307, 2318
of government officials s 2373
before trial, on discovery s 1858, s 1859
proof by copy; see Original Document.
Profert, required in proving a document s 1177, s 1858
see also Production op Documents.
Profits, amount of receipt of; see Contracts; Sales; Value.
Promise as excluding a confession; see Confession.
Proof, distinguished from admissibility 12
from relevancy S 29
beyond reasonable doubt S 2497
Proofs of Loss, in insurance, as an, admission s 1073
Kentucky doctrine .... note five 1073
coroner's verdict to show cause of death in note eight s 1671
as res gestce s 1770
privilege waived by sending physician's' certificate s 2390
Property, conveyance of, as evidence of a weak case s 282
sales of other, as evidence of value s 462
quaKflcations of a witness to value 567, 711
value of, proved by assessor's books s 1640
lack of, proved by assessor's books . s 1640
presumption of ownership from possession of s 2515
see also Possession; Custom; Contract; Premises; Ownership.
Prophylactic Rules defined 1172
Prosecution, may show accused's bad character in rebuttal only .... 57, 58
mahcious; see Malicious Prosecution.
delay or failure to institute, as evidence s 284
may impeach eye-witnesses called by it s 918
list of witnesses of, before trial S 1850
Prospectant Evidence, classification of 51
Prostitution, enticement for, character of complainant as evidence .... s 62
898
INDEX OF TOPICS
IFigures set thus: 1678 refer to main treatise; 1878 (italics) refer to supplement; s 1678 refer to both.)
Section
Prostitution {continued) .
house of; see House of Ill-fame.
other offences as evidence of intent to entice for 349, 360
Protest; see Notary.
Prudence, opinion as to 1949
in matters of business, evidenced by acts of others S 461
Psychology applied in the impeachment of witnesses 876
Public Corporation; see Corporation.
Public Document
1. Admissible to prove the Facts stated therein
(a) in general
(b) registers and records
(c) returns and reports
(d) certificates
2. Proving Contents and Execution of Public Documents
1. Admissible to prove the Facts stated therein
(a) in general '
general principle 1631
as best evidence . . . , s 1335
whether conclusive, or preferred to other testimony . . s 1335, 2427, s 2453
ofQcial duty of maker 1632
deputies, de facto officers, etc s 1633
absence of record to negative occurrence s 1633
publicity of document s 1634
officer's personal knowledge s 1635
constitutionahty of using as evidence . ' s 1398
(b) registers and records
sundry kinds s 1639
statutory regulation of admissibility note two s 1639
assessment and electoral registers S 1640
tax-records admissible by statute note nine s 1640
military and naval registers s 1641
registers of marriage, birth, death S 1642-1646
certificates of marriage S 1645
registers of title (ships, stock-brands, timber-marks) s 1647
as admission of ownership s 1647
registers of conveyances
deeds and mortgages - s 1648-1656
admissible only to prove deeds lawfully recorded 1649
in foreign state s 1652^
proof when registration is unauthorized or faulty s 1653
< registration as admission of execution S 1653
as showing claim of title 1654, s 1777
certified and sworn copies 1655
certified copy of deed itself 1655
discrimination between principles of evidence involved .... 1656
assignments of invention-patent s 1657
wills s 1658
government land-grants 1659
judicial records s 1660
corporation records 1661
legislative records s 1662
executive proclamations s 1662
(c) returns and reports
sundry kinds 3 1664
sheriff's retiirns and recitals 3 1664
surveyor's returns . S 1665
former testimony reported
judges' notes . ■ 1666
899
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.J
Section
i>ublic Document (continued).
magistrates' reports 1667
bills of exceptions ... 1668
stenographers' notes, etc . s 1669
inquisitions and reports
< domain, escheat, and title S 1670
pedigree in heralds' books . . s 1670
lunacy . . s 1671
coroner's inquest of death ... s 1671
census of population s 1671 '
miscellaneous kinds s 1672
(d) certificates
miscellaneous kinds S 1674
notary's protest s 1675
deed-acknowledgments; oaths ... s 1676
certified copies ... . s 1677-1683
printed copies s 1684
court decisions s 1684
statutes s 1684
2. Proving Contents and Execution of Public Documents
whether removable for use in evidence ... s 1186, 2182, s 2183, s 2373
production of original not required s 1218-1222
provable by examined or sworn copy S 1273
by certified or oflce copy s 1677-1683
certified copy preferred to others s 1273
by printed copy s 1684
any copy preferred to recollection s 1267, s 1268
attesting witness dispensed with 1318
see also Copy; CERTiriED Copt.
whether the whole must be proved
lost or destroyed record . > 2107
record accessible 2108
sundry public records s 2109
judicial record S 2110
genuineness, how proved
by seal s 2161-2169
by offlcial custody s 665, s 2158, S 2159
by certificate of attestation 1677, s 2162
as privileged s 2183, s 2373
privileged as State secrets 2368-2372
irremovability of s 2373
right of citizen to inspect note two 1858
see also Certificate; Execution; Judicial Record; Recorded
Conveyance; Notary; Parol Evidence Rule.
[Examine analyses of " OflSicial Statements," Vol. Ill, pp. 1975,
1976; and " Verbal Completeness," Vol. Ill, p. 2819.]
Public Interest, matters of; see Reputation.
Public Oflficer, impeaching his own certificate 529
having power to compel testimony S 2195
privileged from testifying 2368-2372
regularity of proceedings presumed s 2534
appointment and authority presumed S 2535
judicially noticed g 2577
see also Judicial Record; Public Document.
Public Record; see Public Document.
Publication, in newspaper, as evidencing knowledge s 255
of Ubel or slander; see Defamation.
proving the fact of, without producing document s 1249
affidavit of s 1710
900
INDEX OF TOPICS
[Figures set thiis: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Publication {continued).
of testimony in newspaper, forbidden 1836
see also Printed Matter; Notice; Book.
Publicity of trial, as a security for truth 1834
exceptions to the rule s 1835
exclusion of mere spectators s 1835
adjournment of court to another place affecting S 1835
Publisher; see Publication; Printed Matter; Copyright.
Punishment, as evidenced by practice of others s 461
Pupil; see Schoolmaster.
Purchaser, knowledge of equitable or other interest by s 254
see also Grantee; Creditor; Sales.
Putting in the Case; see Examination, III.
Putting under the Rule; see Separation of Witnesses.
Q
Qualifications of a witness; see Witness^ I, Qualifications.
distinctions in proving defective s 876
Quality of a chattel, place, weapon, etc., as evidenced by its effects, etc. s 437— i61
as evidenced by sales or rentals . . s 462
Quantitative Rules defined 1172
Quarrels, refuting evidence of animosity resultant from old .... 34
details of prior, to show hostility of deceased . note three 396
see also Motive; Intent; Bias; Deceased by Homicide.
Question to a Witness, in hypothetical form s 672-684
in leading form s 769-779
allowable only in discretion s 770, 776
judge may put leading S 784
kinds of leading questions 771
exceptions to the rule 776
put to one's own witness 915
in misleading form s 780
cross-examiner need not state purpose of s 780
with intimidating or annoying manner s 781
repetition of . ' . . . . s 782
multiple examiners ^ . . . . . s 783
as limited to one counsel . . s 783
by the judge . . . . ' s 784, s 2484
topics of, for impeachment or other purposes; see Direct Examination;
Cross-examination.
witness' prior knowledge of 788
continuous narration by witness without s 785
stating the purpose of ■ s 1871
as a foundation for impeachment
by expressions of bias or corruption s 953, 964
by self-contradiction ... 1025
by a writing • s 1259
by admissions of a party • s 1051
impeaching a witness sworn but not questioned s 1893
relevancy of, no concern of witness ■ . s 2210
self-incriminating, not forbidden ... ... 2266
warning witness of right to refuse a self-criminating answer .... s 2269
[Examine analysis of " Testimonial Narration or Communication,"
Vol. I, p. 858.]
R
Race, evidenced by corporal traits s 167, s 1154 ,
disqualifying a witness s 516
901
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Race (continued). ,
impeaching a witness ■ 936
evidenced
by reputation s 1605
by family hearsay s 1502
corroboration required for Chinese s 2066
see also Aliens.
Radiograph, as a basis for testimony to bodily condition ...'.... s 795
Railroad, nuisance, nature of s 451
custom as to switch-lights on other . . _ note twenty-six 18
regulations of, as measure of negligence note one 461
reputation to show ownership of premises or vehicles by ... . note eight 1681
see also Negligence; Employee; Premises; Highway; Sparks; Ma-
chine; Cakkier; Rates.
Rape, character of complainant, as evidence s 62, s 200
of plaintiff in indecent assault s 75
civil action for rape 6^
opinion rule applicable to moral character of complainant s 1983
other persons' intereoiirse as evidence of paternity S 133
acts of unchastity, to show complainant's consent s 199
under age of consent, other acts s 398
other intercourse, as evidencing defendant's intent or motive . . s 357, s 398
other attempts on same woman in 402
pregnancy as evidence of 168
improper familiarities as evidencing consent in 402
discriminations in regard to 402
infant or imbecile witness in S 498, s 508
failure to complain speedily of s 284
total failiu-e to make complaint in note five 1135
conduct of complainant, to impeach credibility . . . S 987
restoring credit of complainant 1106
complainant's outcry or information, received 1134
complainant in, too young to be a witness 1139,1781
details of complaint, admissible ' . . s 1760
who is accomplice in s 2060
uncorroborated complainant in s 2061
what is corroborative evidence in note three 206?
marital privilege in s 2239
see also Age of Consent.
Rates of charge by railroad, conclusiveness of official schedule s 1354
Ratification; see Agency.
Rationality of the rules of evidence 9
Re-cross-examination; see Cross-examination; Examination, III.
Re-direct Examination; see Examination, III; Direct Examination.
Reading a prepared paper, by witness 787
a deposition to deponent before signing 805
impeachment of skill of a witness in . s 991
scientific books to jury s 1700
Real Evidence (or Autoptic Proference)
defined 24
general principle and instances s 1150-1152
mode of inspecting s 1152
plaee of inspecting s 1152
color, resemblance, appearance, etc., to show age, paternity, etc. ... s 1154
exhibition of body as privileged 1155
weapons, clothes, etc., in criminal cases s 1157
corporal injuries, in civil cases s 1158
indecent exhibition s 1159
liquor sampled by jurors , . s 1159
902
INDEX OF TOPICS
[Figurea aet thiia : 1678 refer to main treatise ; 1878 (italics) refer to aupplement ; S 1678 refer to both.]
. Section
Real Evidence {continued).
experiments, insanity, etc s 1160
ptysical inconvenience of production s 1161
view by jury s 1162-1167
jury's view as evidence s 1168
specimens proved genuine; in Massachusetts, jury may reject in criminal
trials note three SOW
whether an inscribed chattel must be produced s 1182
of premises, chattels, etc., discovery before trial s 1862
not privileged s 2220, 2221, s 2264
Reason for an act, hearsay statement of s 1729
Reasonable Doubt, proof beyond s 2497
Reasonableness, other persons' conduct, as evidence of s 461
information received, as evidence of . . " 1789
opinion as to 1950 ■
judge or jury to determine 2553
see also Knowledge; Negligence."
Rebuttal, of irrelevant evidence, by other irrelevant evidence s 15
accused's bad character in 58
scope of testimony in s 1869, s 1873
Re-call of a witness by opponent, whether it prevents impeachment . . s 911-913
to ask as to a self-contradiction s 1036
see also Examination. ''
Receipt received as an admission 156
of land-ofSce receiver, original required s 1239
production of original, in proving paymeiit 1245
admissible as statement against interest s 1456, s 1460
varied by parol s 2432
presumption of payment s 2518
Receiver of stolen goods, knowledge as evidenced by repute s 254
as evidenced by other possession ; . . . . 324
thief not an accompUce of note one a 2060
Recital in a deed, of another deed's contents s 1257
in a statute, whether conclusive s 1352
whether admissible s 1662
in a sheriff's deed, whether conclusive 3 1354
whether admissible s 1664
in an ancient deed, of boundary or lost deed s 1573
of pedigree s 1573
in a will, as evidence of pedigree; see Family History.
of consideration, varied by parol s 2433
Recollection
(a) in general
(b) record of past recollection
(c) present recollectidn refreshed
(d) sundry rules
(a) in general
general principles s 725-730
cross-examination to impeach 730
" impression," " belief," etc s 727-729
examining to grounds of recollection 730 .
distinction between past and present s 735
(b) record of past recollection S 734-754, 800
[distinguish from present recollection, infra (c)]
history and general principles s 734, 739
from stenographer's notes 737, note two 751
signature by attesting witness ; . . 737
regular entries in course of business 737, s 747
notary's certificate 737
•903
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.J
Section.
Recollection {continued).
New York doctrine 738
■written copies preferred to oral 73&
must be written . 744
contemporaneous S 745
accuracy sworn to 746, s 747
attesting witness testifying without S 747
Massachusetts rule for regular entries s 747
witness not the writer , s 748
original s 749, 750
verification of copy 750
stenographer's report from interpreter note two 751
transactions by several persons (book-keeper and salesman, etc.) s 751, 752
salesman deceased or unavailable 752
copier of statement as witness to 752
showing to opponent 753
handing to jury ."^ s 754
(c) -present recollection refreshed .... s 758-764
[distinguish from past recollection, supra (6)]
general principle 758
any writing may be used 758
witness not the writer s 765
original s 760
contemporaneous s 761
depositions used s 761, s 904
to refresh, of hostile witness s 761
showing to opponent s 762
handing to jury s 763
use by cross-examiner 764
(d) sundry rules
refreshing the memory of one's own witness by his prior self-contradic-
tion s 905
cross-examination to test s 995
contradicting by showing failure of s 1005, s 1022
self-contradiction by failure of . . . s 1037, s 1043
lost negotiable instrument provable by s 1267
lost will provable by s 1267
preference of copy of a document, to recollection of contents; see Copy
OF A Document, 2.
failure of recollection of attesting witness s 1302, 1315
refreshing recollection by report of prior testimony . . . . 737, s 1328
by seeing specimens of writings 2007
stenographer's notes, as preferred to s 1330
report used by magistrate or clerk to aid 1667
books of account used as memoranda of 1560
[Examine analysis of " Testimonial Recollection," Vol. I, p. 820.]
Record, of stock-brand, as evidence s 150
of business, used by witness not having personal knowledge 666
of public office in hands of successive officials s 665
of a predecessor, as qualifjang a witness to handwriting S 704
production of, under original document rule S 1185
of recollection of a witness; see Recollection.
of conviction of crime, to impeach a witness; see Conviction of Crime.
judicial; see Judicial Record.
official, in general; see Public Document.
of conveyance; see Recorded Conveyance.
voluminous, proved by summary s 1230, s 1244
of assignment ^ 1657
absence of an entry in, how proved . . s 1230, s 1244, s 1678, s 1957, s 1978
904
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.I
Section
Record {continued).
abstract of burnt s 1705, s 2105, 2107
copy received of torn or illegible . s 1275
certificate of effect of s 1674, s 1675
docket is not a note seven S450
Recorded Conveyance
record-book admissible, instead of copy of it s 1186, 1655, s 2373
conveyance on file in public office s 1219
production of original deed not required s 1224-1227
preference for certified copy . . s 1273
copy of a copy 1274
mode of proving copy 1277
production of attesting witness excused s 1290, 1318
record admissible to prove contents and execution
deeds, etc., lawfully recorded s 1648-1651
record in another jurisdiction s 1652
unauthorized record S 1653
proof of other matters recorded . . 1654
certified and sworn copies .... 1655
whole of record must be copied s 2109
Mnds of certified copies admissible ... s 1677-1683
certificate of acknowledgment, as evidence s 1676
assignment of invention-patent s 1657
wiU S 1658
government land-grant 1659
copy of ancient deed recorded S 2143
presumption of consideration .... s 2520
date s 2520
delivery s 2520
notice .' s 2520
seal s 2520
Referee as witness 1912
Reformation of contract, in equity 2417
Refreshment of Memory; see Recollection.
Refusal, to submit to a test, as evidence of guilt 275
to escape, as evidence of innocence s 276, s 293
to produce witness or document, as evidence of a weak case .... s 285-291
to testify, prosecution for note six M70
Register of enlistment, as evidence s 1641
official, in general; see Ptjblic Document.
Register of Deeds; see Recorded Conveyance.
Register of Eand-ofBce; see Land-office.
Register of Marriage, Birth, or Death, production of original required s 1219, s 1223
not preferred to eye-witness of marriage 1336
preferred as proof of birth s 1335
admissible as a deceased person's regular entry s 1523
as an official record 1642, s 1646
certified copy of, by custodian 1682, s 1683
sworn copy of, by custodian s 1710
not required in bigamy s 2088
copy of whole required s 2109
presumed genuine, from official custody s 2159
identity shown by name .... s 2529
kept in a family, as evidence; see Family History.
Register of Ship, whether conclusive s 1352
whether admissible s 1641, s 1647
Registration of Title or Deed, proved by copy s 1239
whether conclusive s 1352
whether admissible s 1647
905
INDEX OF TOPICS
IFigures aet thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Registration of Title or Deed, as a required formality • 2456
as presuming delivery of deed s 2520
no notice of prior deed s 2520
see also Recorded Conveyance.
Regular Entries, exception to the Hearsay rule . 1517
history and statutes 1518, s 1519
as an aid to recollection; see Recollection.
I. Regular Entries in general s 1521-1533
death, absence, etc., of entrant s 1521, s 1561
admissible to avoid mercantile inconvenience s 1521, s 1530
kind of business s 1523
duty to superior s 1524
regularity 1525
may be evidenced by inspection of book 1525
contemporaneousness 1526
no motive to misrepresent 1527, s 1644
oral reports 1528
personal knowledge s 1530
salesman and bookkeeper acting jointly s 1530
form of entry . . . . i 1531
any interpretable mark sufficient 1531
absence of entry to negative transaction 1531
impeaching credit 1531
production of original s 1532
II. Parties^ Account- Boohs
no clerk S 1538
cash payments s 1539, s 1549
goods deUvered to third person 1540
special contracts 1541
special contract proved, may use to show delivery .... note one 1541
kind of business s 1542, 1547
of book s 1548, s 1558
of item 1543, s 1549
each entry must be separate transaction s 1549
contemporaneousness -. 1550
regularity 1547
honest appearance 1551
reputation for correctness 1552
suppletory oath; cross-examination s 1554
used by or against surviving party s 1554
personal knowledge s 1555
party and salesman jointly acting s 1555
form of entry s 1556
must show deUvery as well as order s 1556
impeaching the book s 1557
using the entries as admissions s 1557
production of original; ledger and day-book s 1558
effe9t of statutes 1560
using inadmissible, as memorandum to refresh 1560
books of deceased clerk s 1561
[Examine analysis of " Regular Entries," Vol. II, p. 1878.]
Regularity of official proceedings presumed s 2534
Regulations, of department, judicial notice of s 2572
Relationship, hearsay statements, as evidence of ; see Family History.
bearing on good faith in conveyance s 391
invoked by counsel, disregarded by jury . . . ; note two s 949
in financial matters, to show bias of witness note three 949
Release, varied by parol s 2432
see also Docombnt.
906
INDEX OF TOPICS
[Figures set thus ; 1678 refer to main treatiae ; 1878 (italics) refer to supplement ; S 1678 refer to both.]
Section
Relevancy, distinguished from admissibility 12
■with reference to real evidence 24
general considerations affecting the rules of 27, 28
distinguished from minimum probative value 28
from weight or proof S 29
logical theory of ... ' 30-36
of character, distinguished from conduct to evidence character 53
of facts admitted conditionally on-further evidence 14, 40, S 1871
distinction between definite and indefinite 879
no privilege for irrelevant matters s 2210
of question, no concern of witness s 2210
Religious Belief, as disqualifying a witness s 516, 518
as influencing a confession 840
as impeaching a witness s 935
as requisite for an oath 1817
disclosure of, privileged 2214
Renewal, agreement for, shown by parol 2436, s 2445
Repairs, of a machine or place, to evidence negUgence 32, s 283
to evidence control s 283
Repetition, of questions to a witness s 782
of defamatory utterances; see Defamation.
Reply to letter by mail, as genuine s 2152
to telegram s 2163
opponent's case in 1872
see also Letter.
Report of an official s 1664-1672
of injury, made by agent to principal, as privileged note one S 2319, note five 2319
of a magistrate; see Magistrate.
of domain, pedigree, title, etc s 1670
of a judicial decision
by officially printed copy s 1684
by private printed copy 1703
of a magistrate; see Magistrate.
proving genuineness of 2151
of particular business required by law, privilege for incriminating matters in 226 Jf
of testimony, kinds of; see Former Testimony.
prohibition of publication of 1836
of a clerk or bookkeeper; see Regttlar Entries.
see also Public Document.
Reports, sundry s 1672
Representation, knowledge of falsity of, as evidenced by repute s 256
as evidenced by other false representations 320
Reputation
1. Land-boundaries and Land-customs
2. Events of General History
3. Marriage and other Facts of Family History
4. Moral Character of Party or Witness
5. Sundry Facts provable by Reputation
1. Land-boundaries and Land-customs
by perambulations 1563
matter must be ancient s 1582
kind of reputation s 1583-1591
private boundaries proved by s 1587
possession proved by s 1587
title proved by s 1587
in proving title by adverse possession • . . . note nine 1587
qualifications of, evidence s 1588
source of s 1591
form of reputation 1592-1595
907
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Reputation {continued).
from old deeds, leases, maps, surveys, etc 1592
from jury's verdict 1593
evidenced by judicial decree 1594
absence of, as evidence 1595
2. Events oj General History
ancient matters of general interest 1597-1699
historical works to evidence 1597, 1598
judicial notice of 1599
proved by scientific treatises 1599
3. Marriage and other Facts of Family History '
marriage s 1602-1604
sufficiency of, evidence S 1604
absence note eight s 1605
ancestry . S 1605
birth S 1605
death s 1605
legitimacy s 1605
race s 1605
relationship s 1605
residence note eight s 1605
4. Moral Character of Party or Witness
reputation distinguished from character 52, 920, 1608
see also Character.
as mitigating damages in defamation s 209
of deceased in homicide, to evidence accused's belief s 246
of employee, to evidence employer's knowledge s 249
of lunatic, insolvent, or partner, to evidence purchaser's knowledge
s 253-255
of arrested person, as evidencing probable cause S 258
qualifications of a witness to - S 691, s 692
witness to, cross-examined as to rumors s 988, s 1111
prima facie evidence of crime, under statute S 1354
constitutionahty of using, as evidence S 1398
of honesty, required for a party's account-book 1552
place and extent of reputation S 1615-1616
time of reputation s 1618-1619
kind of character reputed (chastity, sanity, temperanee, etc.)
s 1620, s 1621
to prove common offender s 1620
of animal to evidence disposition or pedigree s 1621
witness' or party's character; see also Character.
5. Sundry Facts ■provable by Reputation
of place of procuring abortion . s 391
solvency, wealth s 1623
partnership . . . , s 1624
knowledge of partnership s 255
incorporation s 1625
miscellaneous facts s 1626
party's knowledge of a fact reputed 1789
see also Knowledge.
[Examine analysis of " Reputation," Vol. II, p. 1931.]
Res Grestae, other crimes admitted when a part of s 218
" coloring " as used in, doctrine 365
complaint in rape, as part of 1134, s 1760
in robbery or larceny 1142, 1762
declarations about private boundary 1563, 1571
distinguished from circumstantial evidence s 1715
confusion of, with declarations of intent 3 1726
908
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Res Gestae {continued).
statements of mental or physical condition s 1716-1740
of the circumstances of an injury or affray s 1745-1756
after corporal injury 1747
of intent or motive s 1714^-1740
exclamation of bystander as s 1765
loose usage of term 1757
charge made in travail by bastard's mother 1764
statements about boundary 1764
declarations by an accused . s 1732, 1765
plaintiff's conduct as s 1770
utterances in contract as S 1770
proofs of loss as s 1770
TTords accompanying the taking as, in conversion s 1777
showing words as, in consideration s 1777
aecompansdng statements in dedication as s 1777
claim of title as part of s 1778
exclamations in a mob or riot 1790
exclamations on violent injury 1745
sundry applications 1757, 1796
admission of agent or co-conspirator as s 1079, 1797
distinguished from circumstantial evidence 1715
utterances a part of the issue, or verbal acts; see Hearsay Rule, III.
general theory of doctrine 1745, 1768, 1796
history of phrase s 1795
see also Spontaneous Exclamations; Verbal Acts; Mental Condi-
tion, Declarations op.
[Examine analyses of " Declarations of a Mental Condition,"
" Spontaneous Exclamations," and " Verbal Acts," Vol. I,
pp. xxxviii, xxxix.]
Res ipsa loquitur 24, s 2509
Resemblance of child, as evidence of paternity s 166, s 1154
see also Identity.
Residence, evidenced by prior residence s 382
presumed to continue s 2530
see also Domicil.
Resistance, as evidence of guilt s 276
Return, of sheriff s 1664, s 1670
of surveyor s 1665
of sundry officers s 1672
distinguished from certificate s 1674
Revocation, testator's utterances as evidence 1734, 1782
Reward, as impeaching a witness s 969
as excluding a confession s 835
Riot, other .acts, as evidencing s 367
see also Mob.
Road; see Highway.
Robbery, possession of goods or money, as evidence of . . . s 153, s 154, s 2513
other crimes, as evidencing intent s 361
by threatening demands 362
motive for s 392
owner's complaint after, as res gestm 1142, 1762
proof of identity in; see Identity.
Roentgen-ray photograph s 795
see also X-ray.
Roman Catholic as a witness; see Religious Belief.
Rule, " Putting under the rule "; see Separation op Witnesses.
Rules of Court, judicially noticed s 2578
limiting right of cross-examination to one counsel s 783
909
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Ruling upon objections s 19
error of, as ground for new trial s 21
Rumors, on cross-examination of a witness to reputation . . . 197, s 988, s 1111
distinguished from reputation, to prove character 1611
S
Safety of machine, premises, etc., as evidenced by other instances . . s 451, s 461
opinion as to ". 1949
Sales, course of business in, as evidence of a transaction . . . 94, 372, s 377, 379
of liquor; see Liquob-sblling.
of other property, as evidence of value s 463
as qualifying a witness to value . . . s 714
as evidence of intent; see Fraud; False Repeesbnta-
TiONS; Fraudulent Tkanspers.
price, etc., as evidence of a motive s 392
decrease of, as evidence of nuisance, etc s 462
production of instrument, in proof of fact of ... 1247
buyer's utterances, used against seller's creditor . s 1779
intent of debtor in s 1967
presumption of fraud appUeable to . S 2504
books of account, as evidence of; see Regular Entries.
warranty in, shown by parol S 2434
statute of frauds applied to S 2454
see also Grantor. v
Salesman, using entry to aid recollection; see Recollection; Regular Entries.
Sample, as evidence of an entire lot 439
Sanity (or Insanity), conduct as evidence of s 228-235
hereditary, as evidence of s 232
capacity of insane person to testify s 4fc-497
of testator, qualification of witness to will as to s 689
witness' experience in, or knowledge of S 568, s 688, s 689
witness' insanity, in impeachment 932
inspection of insane person by tribunal s 1160
insanity excusing absence of an attesting witness s 1316
of a deponent 1408
of a declarant of facts against interest ... s 1456
of a maker of regular entries . . . . s 1521, s 1561
insanity disqualifying dsang declarant s 1445
provable by reputation s 1621
by inquisition of lunacy s 1671
by declarations of testator S 1738-1740
by opinion testimony s 1933-1938
of attesting witness 1936
of lay witness 1933
by inspection s 2220
burden of proof of s 2500, s 2501
in criminal trials s 2501
presumed to continue s 2530
hypothetical question as to; see Hypothetical Question.
see also Lunatic; Insanity.
Scandal, in pleading 2216
Schoolmaster, evidence of standard of disciphne of , s 4|61
Science, men of, as witnesses; see Expert Witness.
instruments and tabulated data of, used by a witness s 665, s 795
books of, physician's testimony based on s 688
used in evidence s 1690-1700
judicially noticed 2566
910
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.)
„ . Section
Scienter; see Knowledge; Owner; Animal.
Scientific Books; see Lbabned Treatises; Science.
Scintilla of evidence g 2494
Scrip, of land grant; see Deed.
Seal, official, as authenticating a document
general principle 2161, s 2162
seal of State 2163
of court or clerk S 2164
of notary a 2165
of sundry officers s 2166
official signatures s 2167
title to office . ." g 2168
attested copy under seal s 1679, s 1680, s 1681
corporate seals s 2169
history of, as making documents 2426
form of 2456
presumption of consideration from note seven 2520
existence of, indicated in copy of recorded deed note one s 2105
judicial notice of foreign s 2166, 2666
of foreign court of admiralty presumed genuine s 1681, s 2164
Search, evidence obtained by illegal s 2183
liquor seized in illegal, admissible note two SS64
for lost document s 1194
for attesting witness s 1313
Seaworthiness, presumption of • 2533
Secondary Evidence, are there degrees of s 1268
Secret of trade, as privileged / s 2212, s 2374
of State s 2375
of friendship 2285
promise to keep, not privileged s 2286
see also Privilege.
Security, agreement to hold deed as, shown by parol s 2437
higher, for same debt, merger presumed note one 2540
Sedition, other acts as evidencing intent s 367
other persons' utterances, as a standard of loyalty s 461
putting in the whole of an utterance s 2097, s 2115, s 2119
see also Defamation; Treason.
Seduction
character of the woman as in issue or mitigating damages s 75, note one 76, 77, 79
poverty as bearing on probability of note ten 392
evidenced by pregnancy 168
sexual desire as evidencing 401
as negativing promise of marriage in 401
not evidence of prior promise of marriage note three 1770
statutory action or criminal prosecution for 79
father's action for, of daughter 210
intercourse of third person, as evidence of paternity ■. s 133
acts of unohastity, as defeating prosecution or mitigating damages . s 205, 210
meaning of " chaste character " in action for S 205
acts of unchastity after, not relevant s 205
rebuttal of testimony to unchaste character in 16S0
unfair surprise in showing conduct S 205
privilege against self -crimination in note seven 2257
other intercourse, as evidencing intent or motive 360, s 398
who is accomplice in s 2060
uncorroborated complainant s 2061
what is corroborative evidence in note three 2062
marital privilege in s 2239
proof beyond a reasonable doubt . . . , s 2498
911
INDEX OF TOPICS
fFigurea aet thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Self-contradiction, as impeaching a witness
one's own witness s 902-096
general theory 1017
unfair surprise in 1019
collateral facts excluded 1020
material facts s 1021
bias, knowledge, skill, etc s 1022
preliminary question to witness s 1025-1039
time and place of inconsistent statement, asked .... note one 1027, s 1029
what is a self-contradiction s 1040-1043
opinion s 1041
silence, omission to claim or speak s 1042
explaining away the inconsistency s 1044
joining issue on the explanation 1046
putting in the whole s 1045
distinguished from a party's admissions or confessions s 821, s 1051
[Examine analysis of " Self-contradiction," Vol. II, p. 1177.]
Self-crimination, Privilege against
(a) in general
(b) hinds of facts protected
(c) form of disclosure protected
(b) mode and effect of making claim
(e) wfiiver of privilege
(f) criminality removed
(a) in general
history s 2250
policy s 2251
correct moral attitude toward . i note sixteen 2251
application to grand jury s 2252
legislature , s 2262
in bankruptcy S 2257, s 2260, note five 2282
constitutional sanction s 2252
common law not changed S 2252
applies to witness as well as accused s 2252
applies in all proceedings s 2252
of corporation, by facts obtained from third person 2281
distinguished from confession-rule 823, s 850, 2266
(b) hinds of facts protected
civil liability s 2254
infamy 2255
forfeiture S 2256
penalty s 2257
seduction s 2257
adultery s 2257
foreign crime s 2258
crime of third person s 2259
of corporation s 2259
of corporation distinguished from ofiBcial's personal privilege
note two 2259
public records s 2259
facts tending to criminate s 2260
facts furnishing a clue S 2261
(c) form of disclosure protected
testimony 2263
documents and chattels s 2264
bodily exposure s 2265
confessions 823, 850, 2266
confessions distinguished from 2266
opponent's proof of document by copy s 1207, s 1209
912
INDEX OF TOPICS
IFigurea set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Seli-cnmination, Privilege against {continued).
evidence obtained by illegal seizure 2183
(d) mode and effect of making claim
cross-examination to character s 2268
judge's warning s 2269
claim by party or counsel s 2270
effect of erroneous compulsion s 2270
counsel cannot claim for witness s 2270
judge determines claim s 2271
what constitutes compulsion note six a 2270
inferences from claim s 2272, s 2273
comment by counsel on accused's failure to testify s 2272
(e) waiver of -privilege
by contract s 2275
by voluntary testimony : s 2276-2278
must be claimed at outset if at aU s 2276
distinction between ordinary witness and an accused s 2276
waiver at one trial is not, for later trial s 2276
impeaching accused's character on stand s 2277
cross-examining to one's own case 2278
weight of credit to be given accused's testimony 2278
(f) criminality removed
by acquittal 2279
by lapse of time 2279
by pardon 2280
by promise of immunity by prosecutor 2280
disgracing facts 2280
by statutory amnesty S 2281
collusive disclosure s 2281
immunity to witness destroys privilege, even if disclosure incrimi-
nates a third person S281
testimony not to be used s 2282
[Examine analysis of " Privilege for Self-criminating Facts,"
Vol. Ill, p. 3069.]
Self-defence, burden of proof of s 2512
character of deceased by homicide, to evidence s 63, s 246
threats of deceased by homicide, to evidence 110, s 247
acts of violence, to evidence s 198, s 248
see also Homicide.
Self-serving Statements, admissibiUty of s 1732, 1765
Sentence, increase of, by prior convictions . s 196
of conviction of crime, as affecting a witness; see Conviction of Crime.
Separate Estate, wife as witness to s 614
presumption of gift to or from s 2526
Separation of Witnesses, history, statutes s 1837
probative effect 1838
demandable as of right s 1839
mode of procedure s 1840
time for requesting s 1840
by whom request is made s 1840
persons to be included s 1841
disqualification for disobedience s 1842
party testif jdng first on his own side s 1869
Servant; see Employee; See vices.
Service of writ, proof of, without production s 1249
Services Rendered, value as evidence of price agreed s 392
opinion as to value of note one s 1944
capacity or quahty, as shown by effects s 460
price of other, as evidence of value s 463
913
INDEX OF TOPICS
(Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplemeixt; S 1678 refer to both.l
Section
Services Rendered {continued).
value of, by attorney s 715, note one s 1944
by physician s 715
qualifloations of a witness to value 567, 711
gratuitous, of a child S 2526
Servitude, as disqualifying a witness s 516
Set-ofi, agreement for, shown by parol 2436, s 2445
Settlement, offer jof, as an admission s 1061
Sewer, as highway defect; see Highway.
Sex, as disqualifying a witness 517
Sheriff, debtor's admissions used against s 1077
deed of, conclusiveness S 1354
recital in deed by, to prove authority to sell s 1664
return of process
conclusiveness s 1347
admissibility s 1664, s 1670
as witness . . 1912
Ship, log-book of; see Log-book.
see also Vessel.
Shipping-register; see Registek.
Shooting, as a crime; see Homicide.
Shopbooks, parties'; see Regular Entries.
Shorthand; see Stenographer.
Showers, at a view by a jury 1167, s 1802
Sidewalk; see Highway.
Sight, evidence of capacity of 222
witness' defective, as affecting credit of observation noie two 934
Sign, dying declaration by making . s 1445
testimony by making; see Deaf-mute. '
Signature, modes of evidencing genuineness; see Handwriting.
forgery of; see Forgery.
of deponent to deposition 805
official, is not of attesting witness s 1292
number of attesting signatures to be proved 1306
of attesting witness or maker of document s 1320, s 1511, 1513
proof of unobtainable attesting, dispensed with s 1320, 1321
proof of, not always necessary s 2134
typewritten or stamped s 2149
as a formality required 2456
by illiterate's mark; see Illiterate.
certificate authenticated by . s 2162
of official, as presuming genuineness s 2164, s 2167
as agent, creating a personal Uability 3 2444
time of s 2520
alteration of; see Alteration.
Silence, as an inconsistency impeaching a witness s 1041
as an admission by a party 292, 1052, s 1071, s 1072
as impeaching complainant in rape 1134
in robbery 1142
Similar Acts, to evidence a common barrator 3 203
of adultery, immaterial in criminal prosecution note six 205
to show Knowledge, Design, or Intent s 300-367
for other purposes than to show Knowledge, Design, or Intent s 306
subsequent 316
to show intent in arson s 354
assault 3 364, 396
blackmail 352
bribery s 343
burglary s 351
914
INDEX OF TOPICS ,
[Figures set thus: 1678 refer to main treatise; 1878 (italics) refer to supplement; S 1678 refer to botli.]
Section.
Similar Acts {continued).
counterfeiting 309
forgery - 309
infringement of copyright s 371
rape; see Rape.
of adultery or bigamy, material to show motive or intent .... 360, s 398
to evidence Knowledge, Design or Intent in civil cases 370
Habit in civil oases note three s 376
as evidence' of authority to accept bill of exchange s 377
as evidencing Habit, Plan, or System in contracts s 377
as evidence of danger is 451-461
see also Design; Intent; Knowledge.
[Examine analysis of " Other Offences, or Similar Acts, as Evi-
dence of Knowledge, Design, or Intent," Vol. I, p. 386.]
Similar Instances, of human conduct; see Negligence; Chaeactek; Similar
Acts.
of effects of a machine, weapon, plabe, etc., to evidence cause, condition, or
quality s 441-461
Similar Statements by a witness; see Witness, III.
Simplificative Rules defined 1172
SkUl, as evidence of an act done 83, s 87
instances of, as evidence s 199, s 221, s 461
mode of evidencing s 220, s 221
of a witness; see Expert Witness.
opinion as to another person's 1949
Skiograph as a basis for testimony to bodily condition s 795
Slander; see Defamation.
Slave, as a witness s 516
ancestry of, as evidenced by color s 167
see also Race.
Sleep, confession in note two s 500
Smoke; see Nuisance.
Snow, as a highway defect; see Highway.
as a kind of weather; see Weather.
Sodomy, other offences, as evidencing intent 360
failure to make complaint of note one 1135
who is accomplice in s 2060
Solvency, as evidence of payment s 89
false statements as to; see False Representations.
as evidenced by prior condition s 382
by reputation 253, s 1623
by opinion 1959
see also Debtor; Bankrupt; Insolvency; Payment. '
Sound, distance or quality of, as shown by instances s 460
Sovereign; see King; Executive.
Space; see Distance.
Sparks from a locomotive, as evidence of negligence or cause .... s 452-456
presumption of negligence from s 2509
Specialty, discharged by parol 2426, s 2455
Specimen of handwriting; see Handwriting.
articles proved genuine; in Massachusetts jury may reject in criminal
trials "o'« *'"'^« ^^^'^
Speculative testimony to injury 663
Speed, expert qualifications of witness to s 971
rate of, at one place evidenced by, at another note ten 382
opinion testimony to s 1977
Spelling, traits of, as evidence of authorship 99
Spiritistfm ; see Telepathy.
Spoliation of evidence in general, as indicating guilt S 278
915
INDEX OF TOPICS
[Figures ^et thus:' 1678 refer to main treatise;' 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Spoliation {continued).
of documents, as evidence of contents s 291
of execution s 2132
as creating a presumption 2524
Spontaneous Exclamations, distinction between, and Verbal Acts . . . 1745, 1752
general theory ^ 1747
death, absence, etc., need not be shown 1748
requirements of the exclamation s 1750
need not be contemporaneous . s 1750
time not essence of doctrine s 1750, 1756
bystander's declaration admissible s 1751, s 1755
relevancy of " main act " is immaterial . 1753
" main act " need not be equivocal 1754
must be in reference to the startling occurrence . . 1754
of one in a colUsion note three s 1760, note two s 1755
in connection with assault or homicide . . note three s 1750, note two s 1755
[Examine analysis of " Spontaneous Exclamations," Vol. Ill,
p. 2247.]
Spouse; see Marital Relationship; Husband; Wipe.
Spy, as impeached by his interest s 969
whether corroboration is needed . . . s 2060
Stains ; see Blood.
Stamp, law requiring, whether Hea: /on is applicable s5,.s6
exclusion of documents lacking s 6, s 2184
tax laws enforced in the Territories, nqte six 2184
required formality of 2456
on letter, evidenced from habit of using government envelopes . . note four 95
Standard of handwriting; see Handwriting.
State, statute of, when applicable . s 6
seal of, presumed genuine 2163
secrets of, privileged . 2213, s 2375
who determines necessity for secrecy 2376
judicial notice of foreign . . 2566
conducting a prosecution; see Prosecution; Defendant.
' see also Foreign Law.
Statement
balance of, may be used to rebut evidence produced by part of ... . 34
adoption of, as an admission s 1075
of pain or suffering / 1718
to a physician s 1719, 1720
after suit brought s 1721
of past events s 1722
about health X723
of design or plan s I725
of intent in domicil cases s 1727
of intent in bankruptcy cases 1728
of motive, reason, or intent s 1729
of emotion, bias, malice, or affection s 1730
of opinion or belief I731
by accused person s 1732
self-serving s 1732
, improper, in argument by counsel 1806
see also Against Interest.
State of Mind; see Belief; Intent; Motive; Knowledge; Mental
Condition.
Statute Book proving genuineness of 2151
Statute, Federal or State, applicable in Federal trials g g
limiting judicial powers in invalid g 7
or ordinance affecting negligence note one 4.61
916
INDEX OF TOPICS
[Figures set thua:_ 1678 refer to main treatise; 1878 (italics) refer to supplement; s 1678 refer to both.]
Section
Statute {continued).
mode of proof
of foreign, domestic, public, private . s 1684
by of&cial printed copy s 1684
by private printed copy 1703
by expert, without copy S 1271
copy of whole required S 2109
enrolment, conclusiveness of s 1350
conclusiveness of recital in s 1352, s 1662
interpretation of s 2478
judicial notice of s 2572
constitutionality of; see Constitutional Rules.
recital in; see Recital.
see also Law; Foreign Law.
Statutes
Federal, respecting " trials at common law," do not include criminal trials S 6
Canadian, in general s 6
constitutionality of, defining crime s 1354
may create new forms of process note three SI 93
pertaining to wills, ballots, insurance policies, under parol evidence rule . s 2452
granting immunity from criminal prosecution; see Immunity.
cited in this book
on witness' qualifications . . . . s 488, s 524, s 576, 577, s 579, 602, 619*
on view by jury s 1163
on a witness' examination in writing . s 1326
on attesting witnesses S 1290, s 1310, s 1320
on dying declarations 1430
on statements of facts against interest 1455
on statements of pedigree 1480
on regular entries s 1519
on oaths s 1828
on separation of witnesses 1837
on marital privilege s 2240, s 2245, s 2334
on privilege against self-crimination s 2252, s 2281
on privilege for communications to attorney s 2292
to physician s 2380
to priest s 2395
specific statutes; see the Table of Statutes Cited, Vol. IV, p. 3633.
Statute of Frauds, whether lex fori is applicable s 5
provisions requiring numbers of witnesses 2049, s 2050
general policy of 2091
requiring formality of writing s 2454
Statute of Iiimitations, other defamatory utterances barred by ... s 403—406
indorsement of pajrment, as removing the bar s 1460, S 1466
annuls privilege against self -crimination 2279
burden of proof of s 2538
see also Time.
Stenographer, notes of testimony taken by s 1669
testifying from notes of former testimony 737
notes, as preferred to reeoUeotion s 1330'
see also Recollection.
Stipulation; see Judicial Admission.
Stock; see Animals; Business; Corporation; Value.
Stock Car, custom, as waiver of agreement not to ride in .... note one 2441
Stockholder, books of corporation used against s 1074
admissions of s 1076
desiring information, procedure for note four a 1858
Stolen Goods, possession of, as evidence of larceny, etc. . . 152, s 153, s 2513.
other, found on search, to show motive s 391
917
INDEX OF TOPICS
IFigures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to Ipoth.]
Section
Stolen Goods {continued).
knowledge of receiver or possessor of, as evidenced by repute s 254
as evidenced by possession of other
goods 324
accused's explanation of possession . . 1143, s 1777, s 1781
presumption from possession of S 2513
thief not an accor^pUce in receiving note one s 2060
receiver of, judgment of stealer's conviction used against 1388
see also Lakcbny.
Street, defective; see Highway.
Street Cax, negligence in injury by s 199
see also Negligence.
Strength, as evidence of an act done 83, s 84, s 225
instances of conduct, to prove s 220
mode of evidencing s 220, S 221
of deceased, to evidence self-defence s 246
expert qualifications of witness to s 571
Strike Out, misuse of motion to, a document, or evidence . . . note seventeen 18
motion to, distinguished from " instruction to disregard "... note three 19
motion to, testimony in gross note eighteen 18
Strychnia; see Poison.
Subornation, as evidence of guilt s 278
in proving aUbi S 279
other crimes as evidencing intent in • s 343
as impeaching a witness s 960-962
who is acoompUoe in note one 2060
see also Pbkjuby.
Subpoena, history of s 2190
officers having power to issue s 2195
general practice s 2199
duces tecum s 2200
necessary for proving third person's detention of document ... s 1212
cross-examination of witness under 1894
document is for inspection of court only, pending admissibility . . s 2200
opponent not to see irrelevant parts note eight a 2200
witness required to read document aloud note eight s 2200
expenses S 2201
Subscribing Witness; see Attesting Witness.
Sue, agreement not to, shown by parol s 2406, 2435, s 2444
Suffering, expressions of ^ 1718
Sufficiency of highway, cattle-guard, machine, etc., as shown by effects . . s 461
of a search; see Search.
of evidence, judge to determine s 2551
Suggestion to a witness, by leading questions s 769-779
by other improper modes s 786-788
Suicide, deceased's intention of, as evidencing innocence of an accused
143, s 1725, s 1726
plans of, to negative homicide 113
motive for . s 144, s 391, 394
disproving by emotions averse to S 144
presumption of insanity from s 2500
presumed instead of accident s 2510
not presumed from taking morphine note one 2540
Summary of voluminous records or accounts s 1230, s 1244
Superstition of the accused note one 86
Superstitious tests of guilt 9
refusal to undergo 275, note one 276
Suppletory Oath for books of account s 1554
Support, collateral agreement to, as consideration for deed .... note one s 2442
918
INDEX OF TOPICS
[Figures get thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Supporting a witness' credjt; see Witness, III.
Suppression of evidence, as indicating guilt s 278
Surety, principal's admissions used against s 1077
using principal debtor's statement against 1474
parol agreement to hold only as s 2438, 2443, s 2444
Surgeon; see Physician.
Surprise; see Unfair Surprise.
Surrebuttal, scope of testimony in s 1874^
Surrender to arrest, as evidence of innocence s 293
Survey, as evidence of adverse possession of a whole tract 378
as illustrating testimony \ s 791
not to be impeached 'I 1346
whether conclusive 2427
as containing declaration or reputation of boundary; see Boundaries.
as an of&cial document - s 1665
judicially noticed s 2575
Surveyor, records of a predecessor; as qualifying a witness to handwriting . . s 704
official, not required in proving boundaries s 794
testimony not required s 1339
opinion testimony to boundary; see Boundaries.
declarations about boundaries; see Boundaries.
official return of S 1665
as regular entry; s^e Regular Entries.
Survivor disqualified as a witness s 678
use of account-books by or against s 1554
testimony must be corroborated s 2065
Survivorship, presumption of 2532
Sustaining an objection s 18
a witness' credit; see Witness, III .
Swearing; see Oath.
Sweat-box, confession made in s 833, 851
Switch; see Premises.
Switch-lights; see Railroad.
Sworn Copy; see Copy.
System, of evidence, analyzed 3
of conduct, as evidencing a crime 304
similar acts to show, in crime 215, s 216
see also Similar Acts.
T
Table of weights, etc., used in evidence s 1698, s 1704, s 1706
of mortaUty, used in evidence s 1698, 2566
of interest, used in evidence s 1672
use of calculating ^ 665
Tally-book of voters; see Election.
Tax, payment of, as evidence of hquor-seUing s 238
of possession of land note two 157
fraud in, other acts as evidencing intent s 341
books of assessment or collection of; see Assessor's Books.
records admissible by statute note nine s 1640
privilege against disclosure of ■ • • ^ 2374
authentication of receipt ■note one 2166
Tax-collector, conclusiveness of deed of ^ 1254
admissibility of recitals of s 1664
Tax-list, production of original S 1^40
Tax-title, regularity of note one 2534
Teacher; see Schoolmaster.
Telegram, deUvery of, as evidenced by dispatch of original s 95
919
INDEX OF TOPICS
[Figures set thua: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Telegram {continued).
production of original S 1223, s 1236
received in reply, as genuine s 2154
not privileged 2287
receipt of, as evidence of authorship 2519
Telepathy, testimony based on 795
Telephone, testimony to conversations by s 669
authenticating a conversation by s 2155
Tenancy, production of lease, in proof of s 1246
disputing landlord's title 1472
declarations made during possession s 1778, s 1779
Tendency, of a machine, weapon, place, etc., as evidenced by its effects, etc. s 437-461
to criminate, facts having s 2260
Tender of witness' expenses s 2201
utterances qualifying a, . . . S 1777
Terms, varying the, of a document s 2425
Test; see Bxpehimbnt.
Testator, conduct as evidence of sanity s 229
utterances evidencing insanity 1790
family relationship of 230
conduct and utterances of 230
assertions of undue influence by 230
belief, as evidence of will's execution 271
statements of execution, contents, revocation, Tindue influence, etc. s 1734-1740
ante-testamentary statements by, 1735
post-testamentary statements by s 1736
statements as to intention to revoke S 1737
as to undue influence or fraud . s 1738
incapacity of, to resist influence s 1738
opinion testimony to legal capacity of s 1958
intention of ' S 112
intent or mistake of; see Parol Evidence Rule, D.
burden of proof of insanity s 2500
of undue influence s 2502
presumption of advancement by s 2526
prior testamentary plans of s 229, 230
undue influence of ' . . . S 229, 230
see also Will; Sanity.
Testimonial evidence, defined 25
relative. value of s 26
general theory of 475
rules for admissibiUty of; see Witness.
Testimonio; see Deed.
Testimony, failure to offer, civil and criminal cases distinguished . . . note four 4
motion to " strike out in gross " note eighteen 18
based on telepathy 795
prosecution for refusal to give note six ZZ70
rules of testimonial preference s 1345-1354
rules of conclusive preference 1348
at criminal trial admitted in civil s 1388
expressed by acting s 789
comment by counsel on accused's failure to give s 2272
voluntary, as a waiver s 2327
see also Witness; Evidence; Expert Witness; Former Testimony;
Examination; Question to a Witness.
Theological behef ; see Religious Belief.
Thing; see Chattel; Premises; Highway; Animals; Weapon; Machine.
Think; see Belief.
" Third Degree " confessions s 833, 8B1
920
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Third Person, crime of, as evidencing accused's innocence 139
conduct to prove, guilty note one 273
threats of, to negative guilt of accused 139, s 140, s 1726
conviction of, for same crime, to negative guilt of accused 142
character of, as evidence of his act s 68
motive of S 141
letter of, as evidencing testator's sanity S 228
flight of, as evidence of guilt s 276
confession of guilt 142, s 1476
fraud of, as evidence of a weak case s 280
admissions of; see Admissions.
Threatening Letters; see Extortion.
Threats of an accused, as evidence of doing the act s 105, s 1732
in general s 106
conditional 107
time of ; s 108
explaining away 109
distinction between communicated and uncommunicated .... note one 111
limitations on admissibility of s 111
rebutted by showing peaceful plans . note six 111
of a deceased, as evidence of self-defence 110, s 247
as excluding a confession; see Confession.
of a third person, as evidencing innocence of the accused . . 139, s 140, s 1726
Ticket, completeness of contract in note two, s 2432
Timber, marks on, as evidence of ownership s 150, s 2152
register of, as evidence S 1647
Time of possession of money, as evidence of payment s 89
of threats of an accused S 108
of intercourse in bastardy S 133
of possession of stolen goods 152
of health, strength, etc s 225
of sanity S 233
of intoxication . w S 235
of defect in highway s 252
of possession, coverture, debt, etc s 382
of intercourse in sexual offences s 398
of other defamatory utterances S 403-406
of utterances, as evidencing identity s 416
of other injuries or effects, as evidencing cause s 437-461
limitation of, for performance of act s 460
prior or subsequent existence, to prove present existence s 438
of other weather-conditions s 438
of other spark-emissions S 456
of work done, or things seen or heard, as shown by other instances . . . s 460
of values s 463
of qualifications of witness 483, 493, 583
of objection to a witness' quaUfloation 486, s 586
of seeing specimens of handwriting 697, 707
of memorandum in aid of recollection s 745, s 761
- length of, for a witness' examination s 783
of character of a witness s 928
length of time illustrated to jury by a watch note twelve 1152
of condition' of an object s 1154
as presuming loss of document s 1196
of notice to produce an original s 1208
of plural depositions s 1379
of birth, death, etc., proved by family hearsay 1501
of certifying a copy 1677
of recording a deed 1649
921
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Time {continued).
of hearsay expressions of pain 1718
of res gestoe utterances s 1760, 1776
identified by a person's utterances 1791
opinion evidence to s 1977
of putting in testimony s 1867-1900
of execution of ancient document 2137
of deed, proved by parol s 2410
lapse of, presuming payment s 2517
of execution of document s 2520
of alteration of document, presumed s 2525
of death, not presumed s 2531
of survival, not presumed 2532
things done same day, presumed same time note one 2540
what is a reasonable, judge or jury to determine 2553
judicially noticed s 2581
see also Act.
Time-book used as a memorandum s 751
as regular entry . . " s 1530, s 1558
Title, by adverse possession; see Possession.
documents of; see Document; Recorded Conveyance; Deed.
registration of; see Registration of Title.
in ejectment, affidavit denying common source of note six 1385
disclaimer of, as a fact against interest s 1458
of landlord disputed by tenant s 1473
proved by reputation s 1587
assessment-books as evidence of s 1641
■ official register of s 1647
■ registration as showing claim of 1654, s 1777
inquisition of, by the sheriff s 1670
abstract of; see Abstract.
deeds of, privilege for 2211
presumption of, from possession S 2515
from lost grant s 2522
to bill of exchange s 2516
to office, presumption of s 2553
admissions of; see Admissions.
see also Ownership; Land Office.
Tombstone, as evidence of pedigree; see Family HisTORy.
Tortfeasor, admission by s 1079
see also Contribution.
Tools, possession of, as evidence of a crime 88, s 238, s 318
of burglary s 149, s 153, s 238
see also Machine.
Traces as evidence of criminal's identity 148, s 149
Tracks; see Footprints.
Trade, secret of, as privileged s 2212, s 2374
see also Custom; Usage.
Trade Journal; see Newspaper.
Train-sheet, used as memorandum s 751
as regular entry s 1630
Transcript of stenographic notes of testimony;, see Former Testimony.
Transfers, in fraud of creditors, mode of evidencing intent 333
admissions of debtor or creditor s 1082
Translation, required for alien's testimony s 811
see also Interpreter.
Travail, complaint in, by bastard's mother 3*1141
Traveller; see Highway.
Treason, other acts of, as evidencing intent s 367
922
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
Treason {continued).
confession of, as dispensing with two witnesses 818, 2038
accused's expressions of loyalty s 1732
list of witnesses before trial S 1850
two witnesses to overt act s 2036
must be to same overt act 2038
both witnesses must be believed 2038
overt act need not be first proved 2038
other overt acts to evidence intent note eleven 2038
Treatise, scientific, used in evidence s 1690-1700
Treaty, judicial notice of s 2573
proof by copy; see Public Document.
Tree, family, as evidence of pedigree; see Family History.
Trespass, by battery, evidence of intent in s 364
of another animal note three 142
to property, evidence of intent in s 367
evidence pf malice in s 367
Trial, at common law in Federal court, rules for s 6
new trial, motion for, to confirm an exception s 20
material error of ruling, as ground for s 21
demeanpr during, as evidence of guilt 2,74
severance of, of persons jointly charged as a removal of interest . . . . s 580
adjournment of, to exterior place, distinguished from view by jury note three 1802
coroner's inquest is not a note seven 1834
publicity of, as a security for truth 1834
exclusion of spectators s 1835
prohibition of printed reports 1836
separation .of witnesses during s 1837
by inspection s 2555
see also Inspection; Witness; Pleading.
Trover, notice to produce document converted 1205
proof of conversion, without producing original s 1249
Trust, agreement to hold property in, shown by parol s 2437
Trust-combination, proved by repute s 1626
Trustee, admissions of . . . , s 1076
communications to, not privileged s 2286
Truth of defamatory words; see Defamation.
Turntable; see Peemises.
Typewriting, manifold copies by, as originals note four s 1234
proving genuineness of s 2149
authorship of letter in, evidenced from expression note three 87
imperfect impression to show authorship .... note one 149, note two ^0^4
U
TTnchastity; see Chastity.
Understanding, testimony to a witness'; see Belief; Opinion.
as varying a document; see Parol Evidence Rule.
Under- valuation; see Importation.
Undisclosed Principal, shown by parol s 2438
Undue Influence, testator's statements of s 1738
burden of proof of , ' ' ' ' ^ 2502
see also Will.
Unfair Prejudice ; see Prejudice.
Unfair Surprise, as applied to conduct to show character in issue . s 194, 202, 1849
in showing particular acts of negligence in civil cases s 199
of unchastity s 200
' two aspects of, distinguished 202
in showing conduct to evidence character in seduction s 205
923
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Unfair Surprise, justifying acts in defamation of character s 207
showing acts of incompetence by employee or physician s 208
evidencing tendency, capacity, quaUty 443
showing collateral facts to impeach witness 1002, s 1007
self-contradiction 1019
preliminary warning to guard witness against 1025
as grounds for discovery 1845
continuance granted for 1848
bill of particulars to avoid 1848
Unilateral Acts; see Parol Evidence Rule, B.
United States, conflict between State law and Federal law s 6
Unseaworthiness, presumption of 2533
Unekilfulness; see Skill; Negligence.
Usage, among conveyancers, proved by repute s 1625
as proved by opinion 1954
by one witness s 2053
varying the terms of an agreement S 2440
interpreting a document s 2462, s 2464
see also Custom; Habit.
Use of machinery, premises, etc., as evidence of safety, etc s 461
Usury, impeachment an instrument for 529
shown by parol evidence 2414
terms of a contract of; see Contract.
Utterance of other forged documents or money; see Forgery; Counterfeiting.
of hbel or slander; see Defamation.
as identifying a time or place S 416
separate, excluded S 2119
incorporated by reference s 2120
under rule of completeness; see Whole op an Utterance.
see also Hearsay Rule, III.
V
Vacuum-ray photograph s 795
machine, use of s 665
see also X-rat.
Validity, under substantive law note five 2167
Value, of an article sold, as evidence of price agreed s 392
witness to, tested by adjacent values 464
property taken, as evidenced by other sales s 463
experience or knowledge as qualifying witness to . . 558, 567, 653, s 711-721
impeached by inconsistencies s 1040
special training or occupation unnecessary to estimate 712
proper tests to show value standard 713
•^proving land s 714 '
of services S 715
of attorney's services s 715, note one s 1944
of physician's services s 715
of chattels s 716
witness to, must know market , s 717
knowledge of, must be of vicinity s 718
must not be by hearsay s 719
estimating, from price-Ust trade journals s 719, note two s 1704
provable by jury's view s 1168
by books of assessors s 1640
by opinion testimony s 1940-1943
jury may use general knowledge of s 2570'
of evidence; see Weight.
see also Sales; Damages.
Varying the terms of a document; see Parol Evidence Rule.
924
INDEX OF TOPICS
[Figures set thus : 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.]
Section
Vehicle, injuries to, as evidence of a highway defect s 458
character of driver of; see Negligence.
standard of conduct as passengers, employees, etc s 461
Vendor; see Grantor.
Vendee; see Grantee.
Venereal disease, as evidence of adultery s 168
Veracity, character for; see Character.
Verbal Acts, general principles 1772
distinction between, and declaration of mental condition s 1715
and res geslm s 1715
distinguished from statements of intent s 1726
applicable to statements of intent in domicil cases s 1727
conduct must be equivocal . 1774
words must aid in completing act 1775
act must be material to issue 1773
words must accompany conduct in time 1776
rule applied to receiving money ... s 1777
acceptance s 1777
advancement s 1777
agency s 1777
consideration , . ... s 1777
conversion , s 1777
dedication .... s 1777
rule applied to delivery .... s 1777
entry s 1777
gift s 1777
larceny s 1777
loan ^ s 1777
payment s 1777
sale s 1777
sundries s 1777
possessor's declarations on issue of prescription s 1778
declarations of claimant of title s 1779
various rules concerning declarations of land-title 1780
declarations by accused found with stolen goods . ' s 1781
affecting revocation of wiU 1782
of a bankrupt 1783
as to domicil s 1784
of intent or motive by an accused 1785
fragmentary utterance, rule of completeness 1786
see also Hearsay Rule, III.; Res Gestje.
[Examine analysis of " Verbal Acts," Vol. Ill, p. 2274.]
Verdict, in another cause, as reputation 1593
not to be impeached by .jurors 2348
except in six jurisdictions s 2354
determination of , by lot ., ^ 2354
acceptance of, by court ® 2356
direction of a s 2495, s 2496
mistake in rendering s 2355, natc two s 2366
in directed, juror's unwillingness to assent note Jour s 2355
see also Judicial Record.
Verification, by cross reading of document • 1279
Vessel, loss of, as evidenced by lack of news s 158, s 2531
safety of, custom of other owners, as evidence ^ocoi
presumption of unseaworthiness of 2533
log-book of; see Log-book.
Veto of governor, whether journals of legislature can be used to prove ... 1S50
Viciousness, of an animal, evidence of owner's knowledge of s 251
see also Animal.
925
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise: 1678 (italics) refer to supplement; s 1678 refer to both]
Section'
View by Jury, general principle 1162
allowable on any issue s 1163
trial court's discretion s 1164
by part of jury 1165
unauthorized view S 1166
showers 1167, s 1802
fence or road viewers 1167
view as evidence s 1168
evidence not to be taken at s 1802
juror disclosing at later trial, knowledge obtained at, on former note one 1910, 2346
adjournment of trial to exterior place, distinguished from . . . note three 1802
adjournment of court for a view 1803
defendant's presence at 1803
Violence of deceased; see Homicide s 248
Voice, as identified by utterance 222
as identifying a person S 660
by opinion testimony s 1977
Void, parol evidence to show a transaction s 2406, s 2423
Voidable Acts, affected by parol evidence rule s 2423
Voir Dire, for ascertaining a witness' qualifications . . 485, s 497, s 508, s 560, 583
no duty of judge to examine on note three 497
admissions of a document's contents on 1258
right of cross-examination on .... ' S 1384, s 2550
examining into religious belief on . s 1820
Vote, refusing to receive, evidence of intent in s 367
fraudulently casting,' evidence of intent in s 367
declarations concerning, by a voter S 1712
disclosure of, privileged
elector s 2215
juror ' 3 2346, 2361
member of legislature s 2375
see also Ballot.
Voter, declarations of domicil by s 1712
waiver of privilege by s 2215
W
Wager of law, in the history of rules of evidence s 575
Wagon; see Vehicle.
Waiver of inadmissibility, by offering other inadmissible evidence .... s 15
accused's bad character erroneously admitted, rebutted by good character,
is not a note twenty-six 18
of objection in general S 18
by failure to object to admission of document, extends to authority of agent 2132
of right of confronting accusers s 1398, s 1415, s 2592
of privilege, not to testify against husband or wife s 2242, s 2340
against self -crimination S 2275
of attorney and chent s 2327-2329
of physician and patient s 2388
of voter s 2215
at one trial is not, for later trial s 2276
custom as, of agreement not to ride in stock ear . . note one 2441
of motion to direct verdict s 2496
of proof; see Judicial Admission.
of right to absent witness' testimony s 2595
Warrant of land-entry, original required s 1239
see also Judicial Record; Land Office.
Warranty, distinguished from an admission s 1056
shown by parol s 2434
Water, other instances of effect of, as evidence s 451
926
INDEX OF TOPICS
[Figures set thus: 1678 refer to mam treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Weakness of case, evidenced by fraudulent acts s 280
by conveyance of property s 282
failure to produce evidence, indicating s 285-291
failure to call expert, indicating s 290
Wealth, provable by reputation s 1623
by assessors' books s 1640
Weapon, deceased's oarrsdng of a, as evidencing self-defence s 246
as evidence of identity . . s 413
capacity of, as shown by its effects s 441-461
condition of, as evidenced by effects s 437
other' acts to evidence carrying concealed note nine 367
other instances of its effects, as evidence s 451
to show capacity or tendency of a s 457
see also Unfair Surprise.
exhibition to the jury s 1157
experiment with gun in jury room note one 460, note one 1160
Weather, as shown by conditions at other times or places s 438
record of conditions of s 1523, s 1639
Weight, of evidence, distinguished from relevancy 12, s 29
of circumstantial evidence s 26
of negative knowledge 664
of confessions s 861, s 866
of testimony wilfully false 1008
no rides of law for s 26, s 2034
Weights, fraudulent, other -acts evidencing intent s 341
Whisky, judicially noticed s 2582
Whole, existence of, inferred from part s 438
Whole of an Utterance, put in evidenc'e
general principle s 2094
instruction on note four S094
I. Compulsory Completeness
precise words required
conversations, etc s 2097
former testimony s 2098
aU parts required
conversations, etc s 2099
confessions s 2100
whole of a writing required
depositions, etc s 2103
separate writings s 2104
lost deed or contract s 2105
abstract of title s 2106
lost will S2106
pubUc records s 2107-2109
judicial records . , s 2110
bill and answer in chancery 2111
II. Optional Completeness
remainder may be put in s 2113
conversations, admissions, confessions, etc s 2115
sundry writings . s 2116
charge and discharge statements 2117
account-books s 2118
separate utterances s 2119
letters of a correspondence s 2120
answer in chancery made evidence ........ s 2121-2124
opponent's inspection making the whole admissible 2125
self-contradiction s 1045, s 2098
dying declaration s 1448
[Examine analysis of " Verbal Completeness," Vol. Ill, p. 2819.]
927
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678- (italics) refer to supplement; S 1678 refer to both.]
Section
Widow, as a witness; see Marital Relationship.
Wife, notice to, as evidencing husband's knowledge s 261
husband's desire or motive to get rid of 191
character of, in alienation of affection s 391
of defendant as witness s 609
of party as Avitness to books of account s 612
testimony of, as disqualified or privileged; see Marital Relationship.
communications by or to, as privileged; see Marital Relationship.
of plaintiff as witness against carrier .... s 612
admissions of, against husband s 1078, s 1086, s 2232
acknowledgment of execution of deed, conclusive s 1347
statements of, to evidence pedigree; see Family History.
expressions of feeUngs towards husband s 1730
presumption of gift by or to s 2526
of accomplice, to corroborate him s 2059
presumption of coercion by husband s 2514
see also Criminal Conversation; Husband; Marriage.
Will, attestation of, whether lex fori is applicable to s 5
forgery of, character of third person as evidence S 68
skill in drafting, as evidence of authorship s 87
testamentary plans, as evidence of execution or contents s 112
execution of, as evidenced by testator's belief 271
spoliation of, as evidence of contents s 291
proving testator's signature in absence of attesting witness s 1320
production of original; see Original Document.
kinds of copy admissible; see Copy; Certified Copy.
calling the attesting witness; see Attesting Witness.
undue influence evidenced by other instances 338
using testimony given at prehminary probate S 1417
record of probate, to prove execution s 1658
certified copy of s 1681
testator's statements
of contents, execution, revocation, undue influence, etc. s 1734-1740, 1782
normality of disposition in 3 1738
intelhgent execution of s 1739
utterances by maker of, as to sanity 1740
recital in, as evidence of pedigree; see Family History.
interpretation of; see Parol Evidence Rule, D.
proof of, by two witnesses
personalty 3 2048
rule in Pennsylvania 3 2048
realty 2049
nuncupative wills 3 2050
holographic wills 3 2051
revocations s 2051
alterations, etc s 2051
contents of lost will s 2052, 2090, s 2106
testimonial evidence required 2090
made in a single document s 2452
proof of, by age of document s 2137-2146
in testator's custody, marks of cancellation on, presumed genuine . note two SI 48
pubhcation of 2411
reading over to testator s 2421
intent or mistake of testator; see Parol Evidence Rule, D.
lost will, clear proof of S 2498
non-discovery of, as inference of revocatory destruction 160
burden of proof of s 2500, 3 2502
presumptions of execution and revocation of 3 2523
see also Testator; Document; Execution; Sanity; Insanity.
928
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1878 (italics) refer to supplement; S 1678 refer to both.]
Section
Wires; see Negligence; Premises; Highway; Machine.
Witness
I. Qualifications and Disqualifications
(a) in general ,
(b) insanity
(0) infancy
(d) alienage, race, color
(e) sex
(f) religion
(g) infamy
(h) turpitude self-confessed
(i) experience
(j) interest
(k) marital relationship
(1) knowledge
(m) recollection
II. Examination
(a) in general
(b) direct-examination
(e) cross-examination
III. Impeachment and Discredit
TV. Restoring Credit
V. TFiinesses Required to he called before others
(a) attesting witnesses
(b) magistrates' report
(a) sundry witnesses
VI. Separation of Witnesses
VII. Number of Witnesses
(a) excessiiie rawTOber
(b) required number
VIII. Kinds of Qualified Witnesses excluded or required to be cor-
roborated for special reasons ^
IX. Securing Attendance and Testimony
X. Privileged Testimony
XI. Sundry Topics
XII. 46seK< Witnesses
For matters of Attestation; see Attesting Witness.
Attested Copy; see Certified Copt.
I. Qualifications and Disqualifications
(a) in general
general theory 475
time 483
attesting, must be competent at time of attestation s 1510
burden of proof 484
capacity is presumed 484, s 497
mode of proof 485
time of objection 486
judge determines 487, s 497, s 2550
statutory enactments s 488
Federal rules s 6
to corporal injury s 688
(t)) insanity, etc s 492-501
deaf-mutes a 498
intoxication s 499
disease, etc s 500
blindness s 500
under exception to Hearsay rule 1751
(c) infancy 3 505-509
under exception to Hearsay rule 1751
929
INDEX OF TOPICS
[Figures set thua: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.J
Section
Witness {continued).
(d) alienage, race, color s 516
(e) sex 517
(f) religion 518
theological belief; see Oath.
(g) infamy (conviction of crime) as a disquaUflcation s 519-524
under exception to Hearsay rule 1751
kind of crime 520
judgment of crime s 521, s 522
conviction in another jurisdiction s 522
pardon, reversal, etc s 523
statutory changes s 524
[Examine analysis of " Moral Depravity," Vol. I, p. 642.]
(h) turpitude self-confessed, as a disquaUflcation s 525-531
accomplice ' . . . s 526
perjurer . ^ s 527
attesting-witness s 528
repudiating one's own instrument s 530
(i) experience as a qualiflcation^ (except capacity) s 555-571
general principles s 555-562
foreign law 564-566
value 567
laymen in expert capacity s 568-571
medical and chemical topics s 568, s 569
sanity s 568, s 569
handwriting and paper money s 570
sundry topics of expert testimony s 571
opinion in general; see Opinion.
see also Expert Witness.
[Examine analysis of " Experiential Capacity," Vol. I, p. 667.]
(j) interest as a disquaUflcation s 575-587
see also Witness, VIII.
history s 575
interest in general s 576
civil parties 577
survivor against deceased, lunatic, etc s 578
accused s 579
co-indictees and co-defendants s 580
testimony to one's own intent s 581
attesting witness of a wiU s 582
time of interest; voir dire 683
burden of proof B 584
mode of proof 585
time of objection S 586
judge determines 587
see also Accomplice.
[Examine analysis of " Interest as a Testimonial DisquaUflcation,"
Vol. I, p. 688.]
(k) marital relationship as a disquaUflcation s 600-620
history s 600
poUcy; statutes 601, 602
general principles 603, 604
mistress, bigamous marriage s 605
for whom is the spouse disquaUfled S 606-610
exceptions based on necessity s 612
on statutes ■ . . s 613-617
statutory aboUtion 619, 620
[Examine analysis of " Marital Relationship as a Testimonial
DisquaUflcation," Vol. I, p. 728.]
930
INDEX OF TOPICS
CFigures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both.]
Section
"Witness {continued).
(1) knowledge as a qualification s 650-721
knowledge as requiring observation 650
distinction between experience and knowledge 558, 651
knowledge of a class of things 653
biu-den of proof of knowledge s 654
witness specifying grounds of knowledge i s 655
personal observation required 656
knowledge amounting to a belief or impression 658
knowledge based on insufficient data . . . ' 3 659
identity s 660
age, etc s 660
state of mind s 661
scientific improbabilities s 662
speculative injuries 663
that a thing would have been observed s 664
scientific instruments or tables S 665
subordinates' records or scientific books s 665
one's own age s 667
another person's name s 667
interpreted conversations 668
telephone conversations s 669
hypothetical questions s 672-684
' party's admissions s 1053
medical matters (sanity, disease, etc.) s 687-690
foreign law s 690
reputation s 691, s 692
handwriting s 693-709
by seeing the act of writing s 694-698
by seeing genuine documents s 699-708
by admission of genuineness of writing 700
by expert comparison 709
value s 711-721
general principles 711-731
land s714
services s 715
personalty s 716
sundry rules s 717-721
dying declarant s 1445
keeper of books of account s 1530, s 1555
officer making public document 163
notary ^ 1635
[Examine analysis of " Testimonial Knowledge," Vol. I, pp. 744,
745.]
(m) recollection; see Recollection.
II. Examination
(a) in general
mode of interrogation in general ' s 768-788
leading questions s 769-779
discretion of court in allowing s 770, 776
assuming truth of controverted fact , • 771
calling for answer " Yes " or " No " s 772
to opponent's witness on cross-examination s 773
to hostile, biassed, or unwilling witness s 774
to preUminary undisputed matters 775
when witness' recollection is exhausted 777
when witness has immature or feeble inteUeet s 778
to prove a contradiction 779
misleading questions s 764, s 780
931
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; s 1678 refer to both.]
Section
Witness {continued).
annoying questions s 781
repetition of questions s 782
multiple examiners S 783
rights of other counsel, under court rule limiting cross-examination
to one counsel s 783
length of examination s 783
judge's questions S 784
narration without questions s 785
non-responsive answers S 785
improper suggestions s 786
prepared deposition 787
answering by reference 788
prior conference with attorney 788
attorney's consultation with sequestered witness s 1840
non-verbal testimony s 789-797
gesture, etc s 789
infirmity of witness exciting prejudice s 789
models, maps, diagrams 3 791
photographs or maps S 792-797
. verification of 793
maker of s 794
production of original 796
of handwriting s 797
written testimony
sundry modes 799-801
records of past recollection 800
depositions s 802-806
see also Depositions.
absent witness' testimony 807
■ see also Judicial Admissions; Question to a Witness.
interpreted testimony s 811, 812
aUens, deaf-mutes, persons ill or inaudible, interpreters, translations s 811
confessions: see Conpessions.
testimony under duress s 815
(b) direct examination; see Examination, III. ,
(c) cross-examination in general; see Cboss-examination.
of one's own witness; see Impeachment.
to show bias or corruption; see Impeachment.
to contents of a document; see Obiginal Document.
to one's own case; see Examination, III.
refusal to answer on; see Privilege.
[Examine analysis of " Testimonial Narration or Communica-
tion," Vol. I, p. 858.]
III. Impeachment and Discredit; see Impeachment. '
IV. Restoring Credit
general principles 1100
good character in support s 1104plll0
after evidence of general character s 1105
particular instances , . 1106, s 1116
bias, interest or corruption shown 1107, 1119, s 1128
self-contradiction s 1007, s 1044, s 1108, 1119, s 2115
contradiction by others 1109, s 1127
discrediting the impeaching witness sllll
explaining away a self-contradiction s 1044, s 2115
a contradiction s 1007
the bad reputation 1112
the misconduct s 1116
the bias, etc 1119
932
INDEX OF TOPICS
[Figures set thus: 1678 refer to main treatise ; 1678 (italics) refer to supplement; S 1678 refer to both.J
TiT-i / Section'
Witness {contimLed). i
corroboration by similar consistent statements S 1122-1144
of statements of an accomplice s 1128
after impeachment by cross-examination s 1131
of witnesses in general 3 1122-1132
contradiction of s 1005
of party's admissions s 1133
rape complainant s 1134r-1140
bastard's mother in travail s 1141
owner of goods robbed 1142
possessor of stolen goods 1143
accused in general 1144
utterances identifjdng a time or place 416
supporting a contradicted witness s 1007
an attesting witness 1514
[Examine analysis of " Testimonial RehabiUtation," Vol. II, p. 1306.]
V. Witnesses required to he called before others
(a) attesting witness; see Attesting Witness.
(b) magistrate's report of testimony s 1326, s 1349
(c) sundry witnesses
maker of document, surveyor, etc s 1339
official certiflcjates s 1345-1353
VI. Separation of Witnesses; see Separation op Witnesses.
VII. Number of Witnesses
(a) excessive number may be rejected
experts 1908
character witnesses 1908
other witnesses 1908
(b) required number
treason S 2036
perjury 2040
sundry crimes s 2044
divorce s 2046
chancery bill s 2047
will of personalty s 2048
of realty 2049
nuncupative will I s 2050
holographic will s 2051
revocation, alteration, etc s 2051
contents of lost will s 2052
usage or custom s 2053
miscellaneous civil cases s 2054
impeaching or reforming a written instrument, in Pennsylvania, two wit-
ness rule s 2054
verbal declaration or admission of a trust, in Texas, corroboration of wit-
ness 2054
single witness need not be beUeved 3 2034
eye-witnesses of a crime s 2079
of corpus delicti S 2081
[Examine analysis of " Number of Witnesses Required," Vol. Ill, p.
2692.]
VIII. Kinds of Qualified Witnesses excluded or required to be corroborated for
special reasons
judge s 1909
juror s 1910
counsel or attorney s 1911
referee, arbitrator, sheriff 1912
opinion witness; see Opinion Rule.
accomplice S 2056
933
INDEX OF TOPICS
Irigurea set thus: 1678 refer to main treatise; 1678 (italics) refer to supplement; S 1678 refer to both,]
Section
Witness {continued).
prosecutrix in rape, bastardy, etc S 2061
parents bastardizing issue S 2063
surviving claimant against deceased s 2065
children s 2066
Chinese s 2066
confessions
respondent in divorce s 2067
accused 2070
corpus delicti s 2073, s 2081
marriage in fact s 2082
bigamy s 2085
admissions ^. . . s 2086
owner, in larceny s 2089
■wills, contracts, etc 2090
statute of frauds 2091
[Examine analysis of " Quantitative Rules," Vol. I, pp. xliii, xUv.] j
IX. Securing Attendance and Testimony
compulsory process
history s 2190
constitutional guarantee s 2191
duty to give testimony s 2192
production of documents s 2193
inspection of premises, chattels, body s 2194
ofl&cers having power to compel s 2195
persons exempt from process 2368-2372
liabiUty to suit or arrest s 2195
notice and summons S 2199
subpcena duces tecum s 2200
tender of expenses S 2201, 2202
expert's fees s 2203
ability to attend s 2204
entitled not to be examined at home note one SS04
illness 1406, 2205
merchants' books 2205
sex and occupation 2206
ofacials 2206, 23^1
official records s 2373
distance from trial 1407, s 2204
process upon the Executive 2368-2372
X. Privileged Testimony; see Privilege.
XI. Sundry Topics
rules for witnesses in Federal courts s 6
testimonial evidence, defined 25, s 26, 475
accused as witness ._, 61
intimidation of, by examiner s 781
as evidence of guilt of party s 278
failure to produce, as evidence of a weak case s 285-292
inference from failure of party to testify s 289
subornation of, other attempts as evidence of intent 342
action to recover expenses note four 2202
testimony of another, as a basis; see Hypothetical, Question.
attesting witness; see Attesting Witness.
absent witness' testimony admitted to avoid postponement 807, s 815, s 1398
duress of, as not excluding testimony ' s 815
preferred witnesses s 1339
eye-witness preferred in some instances s 1339
to contents of a document; see Original Docttment.
to a copy of a document; see Copy.
934
INDEX OF TOPICS
[Figures set thus; 1678 refer to main treatise ; 1678 (italics) refer to supplement ; S 1678 refer to both.ll
SectioiiL
Witness {continued).
discovery of names of witnesses; see Discovert.
list of witnesses before trial s 1850
indorsement of witnesses' names on indictment . . . s 1850-1855, s 2079
known to prosecutor, but not indorsed . S 1853
to execution, showing document to opponent s 1861
XII. Absent Witnesses
unavailable or privileged s 285
prejudiced or inferior, not called S 287
equally available, not called s 288
testimony under hearsay exception 670
excuses for not calling attesting 1308, 1319
death of attesting . . . ' s 1311
absence of attesting, from jurisdiction 3 1312
inability to find attesting s 1313
refusal of attesting, to testify 1317
attestor of recorded document need not be called 1318
unobtainable, may be dispensed with 1396, 1401
unavailable by reason of death 1403
absence from jiu:isdiction s 1404
disappearance, inabiUty to find 3 1405
imprisonment, oflQcial duty 1407
insanity or other mental incompetency 1408
disquahfied by interest s 1409
by infamy 1410
proof of unavailability s 1414
declarations not to return note three 1725
liability for non-attendance 3 2195
unable to attend court, entitled not to be examined at home . note one 2204
af&davit of testimony of, to secure continuance 3 2595
falsity of, to impeach the accused note three s 278
see also Attesting Witness; Absent Witness; Cross-examina-
tion; Examination of a Witness; Distance; Privilege;
Wife; Husband; Chinese.
Women, qualified as witnesses 517
exempt from attendance 2206
Words, interpretation of; see Parol Evidence Rule, D.
expert interpretation of technical 1955
meaning of, judicially noticed^ s 2582
as verbal acts; see Hearsay Rule, III.
defamatory; see Defamation.
Work, capacity of, as evidenced by instances s 460
see also Services.
Workman; see Employee.
Wound; see Corporal Injury; Weapon.
Writ, proof of service of, without production s 1249
see also Judicial Record.
Writing, as the act itself 1346
see also Handwriting; Document.
required by law; see Parol Evidence Rule, B.
X
Z-ray photograph, testimony based on 8 795
use of, machine • ' ^^^
negligent use of note Jour 221
935
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